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Case No. 4:11cv88-RH/WCS

IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION 

STEPHEN GANSTINE, 

 Plaintiff, 

v. CASE NO. 4:11cv88-RH/WCS 

EDWIN BUSS et al., 

 Defendants. 

____________________________/ 

ORDER GRANTING SUMMARY JUDGMENT

 The plaintiff is a former prisoner in the Florida Department of Corrections. 

He asserts that a prison doctor violated the Eighth Amendment by failing to 

adequately treat his serious medical needs and that the Department violated the 

Americans with Disabilities Act by failing to provide necessary treatment, failing 

to provide wheelchair access to all facilities, and allowing correctional officers to 

harass him and require him to work too much. The defendants have moved for 

summary judgment. This order grants summary judgment primarily on the ground 

that the facts do not support the claims. 

 

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I 

 On the defendants’ summary-judgment motion, disputes in the evidence of 

course must be resolved—and all reasonable inferences must be drawn—in the 

plaintiff’s favor. When viewed that way, the facts are these. 

 The plaintiff Stephen Ganstine suffers from a number of medical conditions, 

including obstructive sleep apnea, diabetes, obesity, gout, chronic lower back pain, 

heart disease, and hypertension. Mr. Ganstine entered the Department of 

Corrections on March 1, 2007. He arrived at Lake Butler Reception Medical 

Center on March 2, 2007. He promptly received a brief medical screening from a 

physician’s assistant. Mr. Ganstine received a physical examination from a 

physician, the defendant Erlinda Perez, on March 6, 2007. 

 Dr. Perez examined Mr. Ganstine for more than an hour. It was a thorough 

examination. Dr. Perez prescribed medicines for some of Mr. Ganstine’s 

conditions. But Dr. Perez chose not to prescribe three treatments Mr. Ganstine 

said he needed. 

 First, Dr. Perez did not prescribe a continuous positive airway pressure 

(“CPAP”) device to treat sleep apnea. Dr. Perez concluded, for reasons she has 

clearly articulated, that Mr. Ganstine was not in immediate need of a CPAP. Thus, 

for example, Dr. Perez noted no report of fatigue, a symptom ordinarily associated 

with serious sleep apnea. Dr. Perez concluded that the decision whether to 

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prescribe a CPAP could safely await a pulmonary examination of the kind that 

could be arranged by the physician who would take responsibility for Mr. Ganstine 

when he arrived at the facility where he would serve his sentence. 

 Nor did Dr. Perez prescribe soft diabetic shoes or a wheelchair. Instead, Mr. 

Ganstine received a walker. Dr. Perez concluded from her examination—which 

included watching Mr. Ganstine walk—that Mr. Ganstine did not need diabetic 

shoes or a wheelchair. It is undisputed that Mr. Ganstine did not have a wheelchair 

before he entered the Department of Corrections and did not have one after he left. 

He could walk, though only with difficulty and for a limited distance. 

 Mr. Ganstine arrived at a permanent facility, Apalachee Correctional 

Institution, on May 4, 2007. Walkers were not allowed at Apalachee, so Mr. 

Ganstine received a cane instead. Dr. Perez had nothing to do with the change 

from a walker to a cane. Mr. Ganstine received soft shoes on his arrival at 

Apalachee but still no wheelchair or CPAP. 

 Mr. Ganstine suffered kidney failure on May 23, 2007, and was hospitalized. 

While in the hospital, he received a CPAP. When he left the hospital and returned 

to the Department of Corrections, the CPAP went with him. For the remainder of 

his imprisonment, Mr. Ganstine kept the CPAP. 

 After the hospitalization, Mr. Ganstine’s permanent facility was Gulf 

Correctional Institution Annex. On July 20, 2007, a physician saw Mr. Ganstine at 

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Gulf Annex and prescribed a wheelchair. Mr. Ganstine kept the wheelchair for the 

remainder of his imprisonment. 

 Gulf Annex had special recreational programs to accommodate inmates with 

disabilities. Its facilities, including restrooms, were fully accessible. Mr. Ganstine 

says, though, that it was hard to get to the recreational yard, because correctional 

officers discouraged the use of the only sidewalk, and the alternate routes were 

covered with sand too thick to traverse in a wheelchair without help. Mr. Ganstine 

says the only way to get to the canteen was through the rec yard, and that while the 

restroom adjoining the rec yard and canteen was properly equipped for use by a 

wheelchair-bound inmate, the sand made it difficult to get there. 

 Mr. Ganstine admitted at his deposition that he was assigned orderlies who 

assisted him in getting wherever he wished to go. He said the orderlies were 

available “most of the time” and that there were “very, very few times” when he 

could not get to a destination. Mr. Ganstine said sometimes he pushed himself to a 

destination: “It took longer, but I’d get there.” Ganstine Dep. 57, ECF No. 44-12 

at 15. 

 Mr. Ganstine says that correctional officers sometimes belittled him or 

treated him poorly. For example, a correctional officer once suggested a race 

between Mr. Ganstine and another inmate with a walker. An officer required Mr. 

Ganstine to work—all inmates are required to work—for an hour longer than other 

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inmates, until Mr. Ganstine complained to higher officials; after the complaint, the 

offending officer relented. 

II 

 After Mr. Ganstine completed his sentence and was released, he filed this 

action, seeking an award of damages. Mr. Ganstine asserts a claim against Dr. 

Perez under the Eighth Amendment and 42 U.S.C. § 1983. Mr. Ganstine asserts a 

claim under the Americans with Disabilities Act against the Secretary of the 

Department in his official capacity. Mr. Ganstine originally asserted claims 

against two other Department employees—nurse Lillian Sweat and Dr. Patrick 

Brown—but those claims were dismissed in a prior order. Judgment was not 

entered on the claims against Ms. Sweat and Dr. Brown under Federal Rule of 

Civil Procedure 54(b), so this order directs entry of judgment on those claims. 

III 

 A prison doctor violates the Eighth Amendment—and a prisoner can obtain 

redress under § 1983—when the doctor is deliberately indifferent to the prisoner’s 

serious medical needs. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-05 (1976);

Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007). A delay in treatment, 

like a failure to treat or inadequate treatment, can constitute deliberate indifference. 

But deliberate indifference is a high standard. See, e.g., Farmer v. Brennan, 511 

U.S. 825, 837 (1994). To demonstrate deliberate indifference, a plaintiff must 

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prove “(1) subjective knowledge of a risk of serious harm; (2) disregard of that 

risk; (3) by conduct that is more than [gross] negligence.” Bozeman v. Orum, 422 

F.3d 1265, 1272 (11th Cir. 2005) (per curiam) (alteration in original) (citation 

omitted). 

 I assume for purposes of this order that a delay in providing a CPAP or soft 

shoes or a wheelchair can constitute deliberate indifference to a serious medical 

need. But Mr. Ganstine’s claim against Dr. Perez fails on the facts. 

 Dr. Perez examined Mr. Ganstine for more than an hour, carefully reviewing 

and documenting his medical condition. This was not a cursory examination or 

one exhibiting deliberate indifference. This was, instead, the very antithesis of 

deliberate indifference. The record establishes without dispute that Dr. Perez 

exercised her best medical judgment and treated Mr. Ganstine accordingly. 

 To be sure, Dr. Perez did not prescribe the CPAP that Mr. Ganstine wanted. 

Instead, Dr. Perez concluded, for reasons she has clearly articulated, that Mr. 

Ganstine was not in immediate need of a CPAP. This was a classic disagreement 

about proper treatment—the kind of disagreement that plainly does not constitute 

deliberate indifference. See, e.g., Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 

2000); Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991); Hamm v. DeKalb 

Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985). And this conclusion draws support 

from the weight of authority in CPAP cases; most courts addressing the issue have 

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held that, on their facts, the failure to provide a CPAP did not constitute deliberate 

indifference. See, e.g., Alfred v. Winn Corr. Ctr., 368 F. App’x 583 (5th Cir. 2010) 

(affirming the dismissal of a CPAP claim); see also Kimberly J. Winbush, 

Annotation, Prison Inmate’s Eighth Amendment Rights to Treatment for Sleep 

Disorders, 68 A.L.R.6th 389, §§ 5-6 (2011) (collecting cases). 

 Dr. Perez also did not prescribe soft diabetic shoes; Dr. Perez did not believe 

Mr. Ganstine needed them. This again was not deliberate indifference. See 

Bismark v. Fisher, 213 F. App’x 892, 897 (11th Cir. 2007) (affirming summary 

judgment for a prison doctor who examined the plaintiff and determined that 

special shoes were unnecessary, despite an outside podiatrist’s prescription for 

special shoes); Turner v. Solorzano, 228 F. App’x 922, 923-24 (11th Cir. 2007) 

(affirming summary judgment against a prisoner with an amputated toe who did 

not get soft shoes). 

 Nor did Dr. Perez prescribe a wheelchair. But it is undisputed that Mr. 

Ganstine had not been using a wheelchair before he entered the Department, and 

did not use one on his release. It is undisputed that Mr. Ganstine could in fact 

walk, though only for a limited distance and with some difficulty. Dr. Perez 

observed Mr. Ganstine walk as part of the physical examination. Dr. Perez 

concluded that Mr. Ganstine needed a walker, not a wheelchair. The conclusion 

may have been correct—Mr. Ganstine’s failure to use a wheelchair outside the 

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Department provides some evidence of that—but at worst it was an error in 

medical judgment of a kind that, again, does not constitute deliberate indifference. 

 The conclusion that Dr. Perez did not violate the Eighth Amendment makes 

it unnecessary to determine whether, even if she did, she would be protected from 

liability by qualified immunity. 

IV 

 Title II of the ADA prohibits a public entity from denying a disabled person 

the benefits of the entity’s services, programs, or activities. To at least some 

extent, Title II is within Congress’s authority to enact legislation under § 5 of the 

Fourteenth Amendment. To that extent, an ADA claim against a state is not barred 

by the Eleventh Amendment. See, e.g., United States v. Georgia, 546 U.S. 151, 

157-59 (2006). 

 Mr. Ganstine asserts that the Department violated Title II in several respects, 

including these: delaying the provision of the CPAP, wheelchair, and diabetic 

shoes; hindering his access at Gulf Annex to the canteen, library, weight room, 

barber shop, and a restroom; and belittling him and making him work more than 

other inmates, either because of his disability or in retaliation for his complaints of 

disability discrimination. 

 It is unclear whether the Eleventh Amendment would bar Mr. Ganstine from 

recovering on any or all of these grounds. Thus, for example, it is unclear whether 

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the applicability of the Eleventh Amendment in a prison should be determined at 

that level of generality—a state’s operation of a prison—or should be separately 

analyzed for more specific categories of claims. Because the claims fail anyway, 

the Eleventh Amendment issues need not be addressed. 

 Even assuming Mr. Ganstine was a person with a disability within the 

meaning of the ADA, and that this was so based on both sleep apnea and difficulty 

walking, the delay in providing a CPAP, soft shoes, and a wheelchair was not an 

ADA violation. A denial of medical treatment, without more, is not an ADA 

violation. See, e.g., Dukes v. Georgia, 428 F. Supp. 2d 1298, 1324 (N.D. Ga. 

2006) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) (Posner, C.J.) 

(noting that the ADA addresses a disabled person’s rights regarding access to 

programs and services enjoyed by all, but does not provide a general cause of 

action to challenge the manner of medical treatment for the underlying disability)); 

see also Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005) 

(citing Bryant, 84 F.3d at 249) (noting that inadequate medical treatment is not, 

without more, an ADA violation); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 

1144 (10th Cir. 2005) (finding that “purely medical decisions” do not ordinarily 

fall within the scope of the ADA). 

 To be sure, a denial of medical treatment may violate the ADA if it is based 

on discrimination against a person with a disability—a physician’s refusal to 

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perform heart surgery on a patient with AIDS, for example. And a denial of 

medical treatment may violate the ADA if the treatment is necessary to allow a 

person to access other services—a physician’s refusal of a wheelchair, leaving a 

patient no way to get to the library or canteen, for example. But nothing in the 

record suggests that the temporary denial of a CPAP, soft shoes, or a wheelchair 

had this effect. 

 Mr. Ganstine says that the Gulf Annex recreational yard was covered with 

sand and that a person had to traverse the sandy area to get to the canteen, library, 

weight room, barber shop, and nearby restroom. There was a sidewalk to these 

areas, but Mr. Ganstine says correctional officers discouraged its use. Mr. 

Ganstine says he could not get his wheelchair through the sandy areas and thus 

could not get to the canteen and other facilities. 

 This claim fails because Mr. Ganstine admitted at his deposition that the 

Department provided orderlies to push his wheelchair and that he almost always 

was able to get where he wanted to go. See Ganstine Dep. 57, ECF No. 44-12 at 

15. Under the settled law of the circuit, the conclusory allegations in Mr. 

Ganstine’s affidavit opposing summary judgment are insufficient to overcome his 

clear deposition testimony on this point. See, e.g., Van T. Junkins & Assocs., Inc. 

v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984); see also, e.g., Evers v. 

Gen. Motors Corp., 770 F.2d 984, 986-87 (“This court has consistently held that 

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conclusory allegations [made in an affidavit] without specific supporting facts have 

no probative value.”). 

 Finally, Mr. Ganstine says correctional officers verbally belittled him based 

on his disabilities, and, when he could not do the same work as others, required 

him to do alternative work—dusting—and to stay at it for an hour longer than 

others. Mr. Ganstine acknowledged that when he complained about the work, the 

problem was promptly corrected. And the verbal comments, while inexcusable—

if, as I assume for summary-judgment purposes, they occurred at all—do not rise 

to the level of an ADA violation. See, e.g., Moore v. Curtis, 68 F. App’x 561, 563 

(6th Cir. 2003) (holding that verbal and physical harassment by prison officials did 

not violate the ADA because the plaintiff “did not allege or show that the 

defendants deprived him of any service, program, or activities because of his 

disability, and his disputes with staff and his inmate assistants resulted in only 

isolated instances where he missed meals or privileges”); see also Burkhart v. 

Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1214-15 (D.C. Cir. 1997) 

(general rudeness did not amount to discrimination “by reason of” the plaintiff’s 

disability). 

 The ADA, like Title VII of the Civil Rights Act of 1964, is not a general 

civility code. It has long been settled that rudeness and other intangible 

mistreatment must be “severe or pervasive” to give rise a hostile-environment 

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claim under Title VII. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 

(1993). And rudeness and other intangible mistreatment give rise to a Title VII 

retaliation claim only if the kind of mistreatment would discourage a reasonable 

employee from complaining about discrimination. See, e.g., Burlington N. & 

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). There is no reason to hold the 

ADA’s standards less stringent. Mr. Ganstine’s evidence of rudeness or other 

intangible mistreatment thus does not establish an ADA violation.1

 

 Moreover, the Eleventh Amendment would bar a claim against a state for 

rudeness or other intangible mistreatment that is not severe or pervasive. Congress 

can override a state’s Eleventh Amendment immunity by enacting appropriate 

legislation under § 5 of the Fourteenth Amendment, but Congress cannot adopt 

new substantive rights under § 5 that do not exist under the Fourteenth Amendment 

itself. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 519 (1997). Congress thus 

cannot abrogate Eleventh Amendment immunity for a prisoner’s claim based only 

on rudeness or a general civility code: “Standing alone, simple verbal harassment 

 1

 This makes it unnecessary to consider whether an ADA defendant has an 

affirmative defense analogous to the defense available in a Title VII case, or 

whether the Department would succeed on any such defense on the facts of this 

case. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) 

(recognizing a defense to a Title VII hostile-environment claim when a defendant 

uses reasonable care to prevent and correct promptly any offending behavior and 

the plaintiff unreasonably fails to take advantage of any corrective opportunities 

provided by the employer); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 

(1998) (same). 

 

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does not constitute cruel and unusual punishment, deprive a prisoner of a protected 

liberty interest or deny a prisoner equal protection of the laws.” DeWalt v. Carter, 

224 F.3d 607, 612 (7th Cir. 2000) (citations omitted); see also, e.g., Williams v. 

Bramer, 180 F.3d 699, 706 (5th Cir. 1999) (holding that the use of racial epithets, 

“without harassment or some other conduct that deprives the victim of established 

rights, does not amount to an equal protection violation”), clarified on reh’g, 186 

F.3d 633, 634 (5th Cir. 1999). 

 Mr. Ganstine has not provided sufficient evidence to support a finding that 

the Department of Corrections violated the ADA. 

V 

 For these reasons, 

 IT IS ORDERED: 

 The defendants’ summary-judgment motion, ECF No. 44, is GRANTED. 

The clerk must enter judgment stating, “All of the plaintiff’s claims against all 

defendants are dismissed with prejudice.” The clerk must close the file. 

 SO ORDERED on December 27, 2011. 

 s/Robert L. Hinkle 

 United States District Judge 

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