[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13634

Non-Argument Calendar

____________________

DRAESHUND KENAITAY MAGEE, 

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 1:20-cv-00294-MHH-HNJ

____________________

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2 Opinion of the Court 21-13634

Before JORDAN, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Draeshund K. Magee, a former federal prisoner proceeding 

pro se, appeals the district court’s grant of summary judgment on 

his medical malpractice claim against the United States, brought 

pursuant to the Federal Tort Claims Act and the Alabama Medical 

Liability Act. We conclude that the district court did not abuse its 

discretion in denying Magee’s motion to appoint a medical expert, 

and that it correctly determined that Magee could not prove one 

or more elements of his medical malpractice claim without supporting expert testimony. We therefore affirm.

I.

Magee filed a civil complaint against the United States under 

the Federal Tort Claims Act, alleging that prison medical staff at 

the Federal Correctional Institution in Talladega, Alabama failed to 

provide appropriate treatment for his dislocated shoulder. Specifically, Magee alleged that the medical staff failed to arrange for 

physical therapy and follow-up care by an orthopedic specialist, 

causing him to suffer prolonged and unnecessary pain and restricted use of his shoulder. He asked the court to appoint a medical expert to testify on his behalf regarding the standard of care for 

the treatment of his injury and the consequences of delaying care.

The government responded to the complaint and moved for 

summary judgment. Attachments to the motion for summary 

judgment included Magee’s medical records and an affidavit by 

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21-13634 Opinion of the Court 3

Mark Holbrook, M.D., the Clinical Director at FCI Talladega. In 

his affidavit, Dr. Holbrook testified that he had reviewed Magee’s 

medical records and opined that Magee had “received evidencebased proven effective medical care and treatment in accordance 

with medical standards.” He opined that immediate follow-up 

with an orthopedist was not required because discharge instructions from Magee’s emergency room visit instructed him to follow 

up with his primary care physician. He also testified that he did not 

prescribe physical therapy for Magee because his condition did not 

warrant it.

The medical records submitted by Magee and the government show the following undisputed facts. On January 5, 2018, 

Magee reported to prison medical staff that a guard had dislocated 

Magee’s right shoulder when handcuffing him after an altercation 

in the prison yard. Dr. Holbrook examined him, confirmed the 

dislocation by x-ray, gave him pain medication, and sent Magee to 

the emergency room at a local hospital for treatment.

At the hospital, emergency room physician Robert Ruth, 

M.D., performed a closed reduction of Magee’s shoulder joint and 

placed his arm in a shoulder immobilizer. Dr. Ruth gave Magee 

discharge instructions to return to the emergency room or follow 

up with his primary care physician if he was feeling worse or experiencing new symptoms, and to follow up with an orthopedist and 

keep the shoulder immobilizer in place until that follow-up visit. 

The discharge instructions listed Dr. Holbrook as the follow-up 

physician. Dr. Ruth also gave Magee preprinted discharge 

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instructions describing the causes, symptoms, diagnosis, and treatment of shoulder dislocation and advising him on the use of the 

shoulder immobilizer. The preprinted instructions explained that 

a “shoulder dislocation is treated by placing the humerus back in 

the joint (reduction).” It also stated that after reduction, the patient 

should wear the shoulder immobilizer for up to three weeks, after 

which “your caregiver may prescribe physical therapy to help improve the range of motion in your shoulder joint.” The instructions advised Magee not to use his arm out of the immobilizer 

without doctor approval and to always wear the immobilizer at 

night.

Later that night, Magee removed his shoulder immobilizer 

and re-injured his shoulder by rolling over on it in bed. Prison medical staff sent him back to the hospital, where he was treated by 

Jorge Blanco, M.D. Dr. Blanco gave Magee another copy of the

preprinted instructions for treatment of his shoulder dislocation 

and use of the shoulder immobilizer and instructed him to follow 

up with his primary care physician in two days.

Magee was again examined by a nurse on his return to the 

prison. He reported shoulder pain and was advised to keep his arm 

in the shoulder immobilizer until his follow-up with orthopedics 

and report to sick call as needed.

On January 17, 2018, Magee complained of shoulder pain to 

a nurse making rounds in his housing unit. The nurse noted that 

he “continue[d] to not follow medical instructions to not use right 

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21-13634 Opinion of the Court 5

shoulder. Keep arm in immobilizer sling and to not lift anything.” 

The nurse contacted Dr. Holbrook, who prescribed ibuprofen.

Two days later, Magee again complained of shoulder pain to 

a nurse making rounds in his housing unit and requested physical 

therapy. He also reported several other issues, including vision 

problems. The nurse informed him that only one medical complaint could be addressed at a time, and Magee elected to discuss 

his vision. In early February, medical staff renewed Magee’s prescription for ibuprofen to treat his shoulder pain.

Over the next several months, Magee was seen by medical 

staff on six separate occasions for various concerns, but he did not 

report any problems with his shoulder. During his annual chronic 

care visit in January 2019, he reported having shoulder pain “at 

times.” 

Several months after that, on September 16, 2019, Magee reported having periodic shoulder pain for several months. He described the pain as a level 3 out of 10 and said that it was relieved 

with pain medication. The nurse practitioner referred him to the 

commissary for ibuprofen. She also ordered a shoulder x-ray, 

which was not completed (for reasons that are disputed). 

On November 21, 2019, Magee reported to sick call complaining of worsening right shoulder pain. He said that he thought 

his shoulder had “popped out of place” the night before, and he 

rated his pain as a 9 out of 10. The nurse practitioner prescribed 

pain medication and a shoulder x-ray. Dr. Holbrook reviewed the 

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x-ray, which showed no dislocation, and gave Magee a routine referral to an orthopedist. 

Almost three months later, in February 2020, Magee visited 

an outside orthopedist. The orthopedist examined Magee’s shoulder and found limited range of motion, mild weakness, and notable 

crepitus. He recommended an MRI and follow-up after the MRI 

was obtained. Dr. Holbrook ordered an MRI, with a target date of 

May 29, 2020. 

On January 1, 2021, Magee submitted a sick-call request 

complaining of severe, unbearable pain in his shoulder. He was 

seen three days later in his housing unit by a nurse practitioner, 

who noted his complaints of shoulder pain (rated as 6 out of 10) for 

the past month. The nurse practitioner prescribed ibuprofen and 

ordered an x-ray. A prison physician noted “abnormal findings” on 

the shoulder x-ray and that an MRI might be indicated. Magee was 

again advised to purchase ibuprofen at the prison commissary until 

the MRI could be completed. According to Dr. Holbrook, the MRI 

was not obtained while Magee was housed at FCI Talladega because of prison transport restrictions related to COVID-19. 

In a supplemental filing, Magee informed the court that he 

had been transferred from Talladega to the federal prison in 

Bastrop, Texas on January 31, 2021. Magee stated that the Clinical 

Director at Bastrop had physically examined him and ordered xrays, which Magee said was “the same treatment the Defendant(s) 

(F.C.I. Talladega) denied Magee from Jan. 5, 2018 thru [sic] Jan. 31, 

2021.” According to Magee, the physician at Bastrop had 

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subsequently ordered an MRI, which had been completed on August 31, 2021.

After reviewing Magee’s medical records and the parties’ 

briefing, the district court denied Magee’s motion for the appointment of an expert and granted summary judgment in favor of the 

United States. The court explained that Magee had not made a sufficient showing of negligence by the Talladega prison medical staff 

to warrant the appointment of an expert. The court pointed out 

that although the physician who initially treated Magee in the 

emergency room instructed him to follow up with an orthopedist, 

Magee had immediately reinjured his shoulder and received new 

instructions to follow up with his primary care physician after his 

second visit to the emergency room. The court also explained that 

Magee’s medical records belied his complaint that Talladega medical staff had not provided physical examination and x-rays, showing that he was evaluated and usually provided with medication 

whenever he reported shoulder pain. The court noted that Magee 

was referred to an orthopedist when he reported worsening pain, 

and it declined to “second-guess” the scheduling decisions that delayed his MRI in light of the multiple challenges to prison administration posed by COVID-19. The court concluded that because 

Magee’s medical records demonstrated that prison medical staff 

had not breached the standard of care, the United States was entitled to summary judgment. This appeal followed.

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II.

We review the district court’s denial of a request for appointment of an expert for abuse of discretion. Bass v. Perrin, 170 F.3d 

1312, 1319 (11th Cir. 1999). Under this standard, we will affirm the 

district court’s decision “unless we find that the district court has 

made a clear error of judgment, or has applied the wrong legal 

standard.” Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 

1330 (11th Cir. 2005).

We review the district court’s grant of summary judgment 

de novo. Swafford v. United States, 839 F.3d 1365, 1369 (11th Cir. 

2016). Summary judgment is appropriate “if the movant shows 

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). 

III.

The Federal Tort Claims Act (FTCA) waives the sovereign 

immunity of the United States for personal injury claims arising 

from the negligence of government employees acting within the 

scope of their employment if a private person would be liable to 

the claimant under “the law of the place where the act or omission 

occurred.” 28 U.S.C. § 1346(b)(1). Thus, because the medical negligence alleged here occurred in Alabama, Alabama provides the 

substantive law applicable to Magee’s FTCA claim. See id.; Stone v. 

United States, 373 F.3d 1129, 1130 (11th Cir. 2004).

To establish liability for medical malpractice in Alabama, the 

plaintiff must prove (1) the appropriate standard of care, (2) a 

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deviation from that standard, and (3) a proximate causal connection between the deviation and the plaintiff’s injury. Hauseman v. 

Univ. of Ala. Health Servs. Found., 793 So. 2d 730, 734 (Ala. 2000). In 

most medical-malpractice cases, a plaintiff must prove his case 

through testimony by a “similarly situated” medical expert. Id.; see 

Univ. of Ala. Health Servs. Found. v. Bush, 638 So. 2d 794, 802 (Ala. 

1994).

Here, Magee acknowledges that he did not present expert 

testimony in support of his claim, and that he could not prove medical negligence under Alabama law without such testimony. He 

argues that the district court should have granted his motion to appoint an expert under Rule 706 of the Federal Rules of Evidence 

because as an indigent prisoner, he lacked the means to obtain an 

expert on his own.

Rule 706 gives district courts the discretionary authority to 

appoint experts. Fed. R. Evid. 706(a). In civil cases, the experts are 

to be compensated “by the parties in the proportion and at the time 

that the court directs,” and the compensation is later charged as 

costs. Fed. R. Evid. 706(c). “Where a party requests the appointment of an expert to aid in evaluating evidence that is relevant to a 

central issue in the case, the court is obligated to fairly consider the 

request and to provide a reasoned explanation for its ultimate decision on the matter.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 

326 F.3d 1333, 1348 (11th Cir. 2003). But the court generally is under no affirmative obligation to grant the party’s request. Id. 

“Quite the contrary, as long as the district court thoroughly 

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considers a request for the appointment of such an expert and reasonably explains its ultimate decision thereon, that decision is 

vested in the sound discretion of the trial court.” Id. at 1348–49.

The district court here gave due consideration to Magee’s 

motion and provided a reasoned explanation for its decision. It explained that it had reviewed Magee’s medical records, which were 

readily comprehensible to a layperson, and determined that they 

did not support his allegations that prison medical staff failed to 

provide necessary and appropriate care for his shoulder injury. The 

court thus concluded that the assistance of a court-appointed expert was not warranted. Under the circumstances, we cannot say 

that this decision was a clear error in judgment. See Ameritas Variable Life Ins. Co., 411 F.3d at 1330. 

And as we have explained, the lack of expert support was 

fatal to Magee’s medical malpractice claim. Under Alabama law, 

expert testimony is ordinarily required to prove a violation of the 

applicable standard of care as well as causation. See Cobb v. Fisher, 

20 So. 3d 1253, 1257 (Ala. 2009); Bush, 638 So. 2d at 802. Summary 

judgment is warranted “against a party who fails to make a showing sufficient to establish the existence of an element essential to 

that party’s case, and on which that party will bear the burden of 

proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

IV.

The district court did not abuse its discretion in denying 

Magee’s motion for the appointment of an expert witness. And 

because Magee could not prove essential elements of his medical 

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negligence claim without expert testimony, the district court did 

not err in granting the government’s motion for summary judgment. We therefore affirm.

AFFIRMED.

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