IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DONALD R. HILYER, JR. 

(AIS #165924),

Plaintiff,

:

:

:

vs. :

: CIVIL ACTION 15-00356-WS-N

JEFFERSON S. DUNN, et al.,

Defendants.

:

:

:

REPORT AND RECOMMENDATION

Plaintiff Donald R. Hilyer, Jr., an Alabama prison inmate proceeding pro se and 

in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action was referred to 

the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72(a)(2)(R), and is 

now before the undersigned on Defendants’ Motion for Summary Judgment (Docs. 29, 

30, 34). After careful review of the pleadings, and for the reasons set out below, it is 

recommended that Defendants’ Motion for Summary Judgment be granted, and Plaintiff 

Hilyer’s federal claims be dismissed with prejudice.

I. Summary of Allegations. 

Plaintiff Donald R. Hilyer, Jr. is within the custody of the Alabama Department of 

Corrections and was confined at Fountain Correctional Facility (Fountain) and J.O. Davis 

Work Release Center, in Atmore, Alabama, as well as the Loxley Community Work 

Center (Loxley Work Release), in Loxley, Alabama at all times relevant to this action. 

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The background to Hilyer’s complaint begins on December 31, 2014, when 

Hilyer suffered a seizure while incarcerated at J.O. Davis Work Release Center (J.O. 

Davis). (Doc. 9-1 at 1). Following the seizure, Hilyer was immediately transferred to the 

medical infirmary at Fountain and then airlifted by Life Flight to Mobile Infirmary, in 

Mobile, Alabama, for treatment. (Id.). Physicians at Mobile Infirmary diagnosed Hilyer 

with oligodendroglioma, a cancerous brain tumor, which was determined to have caused 

the seizure. (Doc. 30-2 at 1-12). 

Hilyer was hospitalized for 21 days in Mobile Infirmary during which time he 

underwent surgical treatment for partial removal of the brain tumor and was placed on 

prescription anti-seizure medications, Keppra and Dilantin, to control any potential 

seizure activity. (Doc. 9-1 at 1). Additionally, radiation therapy was prescribed and 

received to destroy the portions of the tumor remaining after surgery. (Doc. 7 at 6).

Upon discharge from the hospital on January 20, 2015, Hilyer returned to the 

infirmary at Fountain, where he received all prescribed medications and radiation 

treatments. (See Doc. 30; Doc. 9-1 at 1). On April 14, 2015, infirmary discharge papers 

were signed by the prison’s physician, and Hilyer returned to J.O. Davis the following 

day, with orders to take, amongst other medications, Keppra twice daily (at 5:00 a.m. and 

6:00 p.m.) and Dilantin three times daily (at 5:00 a.m., 11:00 a.m., and 6:00 p.m.). (Doc. 

30-10 at 97). Hilyer remained at J.O. Davis for one week before being transferred to 

Loxley Work Release on April 21, 2015. (Doc. 9-1 at 1). However, within hours of 

arriving at Loxley Work Release, Hilyer suffered another seizure. (Id.). 

The medical records state that while walking to a water fountain at Loxley Work 

Release, Hilyer experienced seizure like activity on April 21, 2015; Hilyer was reportedly 

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found “lying on the floor, bleeding from his mouth with his eyes open, conscious.” (Doc. 

30 at 5). At 6:11 p.m., orders were given for him to be transported to Fountain’s 

infirmary for necessary treatment and observation. (Doc. 30-11 at 1). Hilyer arrived at 

Fountain’s health ward approximately one hour later and was examined by nursing staff

at 7:35 p.m. on April 21, 2015, where he exhibited no signs of active seizure activity and 

was held for observation for 24 hours. (Doc. 30-11 at 3, 6). 

On June 18, 2015, Plaintiff Hilyer brought this § 1983 action1 alleging Eighth 

Amendment violations against: (1) Defendant Katherine Gibson, Administrator of Health 

Services, for denying him prescribed anti-seizure medications during the week of April 

15 through 21, 2015, (2) Jefferson Dunn, Commissioner of the Alabama Department of 

Corrections, as Defendant Gibson’s supervisor and for failure to pay cost of medical care, 

and (3) Shawn Geohagen, Certified Registered Nurse Practitioner, for denying him 

vitamins, dietary profile change, and medical treatment. (Doc. 9 at 5; Doc. 9-1 at 1; Doc. 

18). He seeks compensatory and punitive damages from each defendant, payment of his 

medical bills, and his release from prison.2 (Doc. 9 at 7, Doc. 7 at 7; Doc. 18 at 1). 

Defendants have answered the suit, and their submitted Special Reports (Docs. 

29, 30, 34) have been converted into a Motion for Summary Judgment (Doc. 31). After a 

thorough review of the motion and Plaintiff’s response thereto (Doc. 32), this motion is 

ripe for consideration. 

 1 The complaint was originally filed in the United States District Court for the Middle 

2 Plaintiff seeks $500,000.00 in compensatory damages and $500,000.00 in punitive 

damages from Defendants Dunn and Gibson, and $500,000.00 in punitive damages from 

Defendant Geohagen for mental and physical anguish, for a total of $2.5 million. (Doc. 7 at 7; 

Doc 9 at 7; Doc. 18 at 1).

Notably, Hilyer’s relief request to be released from prison may only be granted pursuant 

to a habeas corpus petition, not in a section 1983 action. Preiser v. Rodriguez, 411 U.S. 475, 500 

(1973) (release from incarceration cannot be gained in § 1983 action); Allen v. Thompson, 815 

F.2d 1433, 1435 (11th Cir. 1987) (same).

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II. Standard of Review. 

Summary judgment is proper "if the movant shows that there is no genuine 

dispute as to any material fact and that the movant is entitled to judgment as a matter of 

law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 

106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("The mere existence of some alleged 

factual dispute between the parties will not defeat an otherwise properly supported 

motion for summary judgment."); Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th 

Cir. 2009) ("[S]ummary judgment is appropriate even if 'some alleged factual dispute' 

between the parties remains, so long as there is 'no genuine issue of material fact.'").

The party seeking summary judgment has the initial responsibility of informing 

the court of the basis for the motion and of establishing, based upon the discovery 

instruments outlined in Rule 56(c), that there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 

U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Allen v. Bd. of 

Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007) ("The moving party

bears the initial burden of showing the court, by reference to materials on file, that there 

are no genuine issues of material fact that should be decided at trial."). Once this initial 

demonstration is made, the "responsibility then devolves upon the non-movant to show 

the existence of a genuine issue . . . [of] material fact." Fitzpatrick v. City of Atlanta, 2 

F.3d 1112, 1116 (11th Cir. 1993); see also Allen, supra, at 1314 ("'When a moving party 

has discharged its burden, the non-moving party must then "go beyond the pleadings," 

and show by its own affidavits, or by "depositions, answers to interrogatories, and 

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

trial.'") internal citations omitted); see Comer v. City of Palm Bay, Fla., 265 F.3d 1186, 

1192 (11th Cir. 2001) ("Once the moving party discharges its initial burden of showing 

that there is an absence of evidence to support the non-moving party's case, the nonmoving party must specify facts proving the existence of a genuine issue of material fact 

for trial confirmed by affidavits, ‘depositions, answers to interrogatories, and admissions 

on file.’”) (internal quotations and citations omitted).

Forbidding reliance upon pleadings precludes a party from "choos[ing] to 

wait until trial to develop claims or defenses relevant to the summary 

judgment motion." . . . This effectuates the purpose of summary judgment

which "'is to pierce the pleadings and to assess the proof in order to see 

whether there is a genuine need for trial.'" . . . Thus, "mere general 

allegations which do not reveal detailed and precise facts" will not prevent 

the award of summary judgment upon a court's determination that no 

genuine issue for trial exists.

Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert. denied sub 

nom. Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S. Ct. 74, 133 L.Ed.2d 33 

(1995); see also LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 

1998) ("[The nonmoving party] must raise 'significant probative evidence' that would be 

sufficient for a jury to find for that party."). In other words, there is no genuine issue for 

trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for 

the non-moving party[.]" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 

U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see Comer, supra, 265 

F.3d at 1192 ("Summary judgment is required where the non-moving party's response to 

a motion is merely 'a repetition of his conclusional allegations' and is unsupported by 

evidence showing an issue for trial.").

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In considering whether Defendants are entitled to summary judgment in this 

action, the undersigned has viewed the facts in the light most favorable to Plaintiff 

Hilyer. Comer, supra, 265 F.3d at 1192 ("We view the evidence and all factual 

inferences raised by it in the light most favorable to the non-moving party, and resolve all 

reasonable doubts about the facts in favor of the non-moving party.").

The requirement to view the facts in the nonmoving party's favor extends 

only to "genuine" disputes over material facts. A genuine dispute requires 

more than "some metaphysical doubt as to the material facts." A "mere 

scintilla" of evidence is insufficient; the non-moving party must produce 

substantial evidence in order to defeat a motion for summary judgment.

Garczynski, supra, 573 F.3d at 1165 (internal citations omitted). In addition, "[t]here is 

no burden upon the district court to distill every potential argument that could be made 

based upon the materials before it on summary judgment." Resolution Trust Corp., 

supra, 43 F.3d at 599.

III. Analysis.

The Eighth Amendment provides that, "[e]xcessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. 

amend. VIII. The Eighth Amendment's proscription against cruel and unusual 

punishment prohibits prison officials from exhibiting deliberate indifference to a 

substantial risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828, 114 

S. Ct. 1970, 128 L. Ed. 2d 811 (1994); see also Robinson v. California, 370 U.S. 660, 82 

S. Ct. 1417, 8 L. Ed. 2d 758 (1972) (Eighth Amendment is applicable to the states 

through the Fourteenth Amendment). The Supreme Court summarized a state’s 

constitutional responsibilities with regard to inmates stating: 

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[W]hen the State takes a person into its custody and holds him there 

against his will, the Constitution imposes upon it a corresponding duty to

assume some responsibility for his safety and general well-being. . . . The 

rationale for this principle is simple enough: when the State by the 

affirmative exercise of its power so restrains an individual's liberty that it 

renders him unable to care for himself, and at the same time fails to 

provide for his basic human needs -- e.g., food, clothing, shelter, medical 

care, and reasonable safety -- it transgresses the substantive limits on state 

action set by the Eighth Amendment and the Due Process Clause.

DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 199-200, 109 S. Ct. 

998, 103 L. Ed. 2d 249 (1989) (citations omitted).

In order to prevail on an Eighth Amendment claim, an inmate must make both an 

objective and a subjective showing. In Sims v. Mashburn, 25 F.3d 980 (11th Cir. 1994), 

the court delineated the objective and subjective portions of an Eighth Amendment claim 

as follows:

An Eighth Amendment claim is said to have two components, an objective 

component, which inquires whether the alleged wrongdoing was 

objectively harmful enough to establish a constitutional violation, and a 

subjective component, which inquires whether the officials acted with a 

sufficiently culpable state of mind.

25 F.3d at 983. To prevail on constitutional claims like the ones asserted by Plaintiff, he 

must prove that there was "a substantial risk of serious harm," that Defendant was 

subjectively deliberately indifferent to that risk, and causation. Hale, 50 F.3d at 1582; 

see also Farmer, 511 U.S. at 832-34.

The objective component of an Eighth Amendment claim for inadequate health 

care requires that Hilyer demonstrate the existence of an "objectively serious medical 

need." Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). 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 

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attention.'" Id. (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th 

Cir. 1994)). "In either of these situations, the medical need must be one that, if left 

unattended, pos[es] a substantial risk of serious harm." Id. (internal quotation marks and 

citation omitted). 

There can be no doubt that controlling seizures constitutes a serious medical need, 

see Johnson v. Hay, 931 F.2d 456, 461 (8th Cir. 1991); Miranda v. Munoz, 770 F.2d 255, 

259 (1st Cir. 1985); thus, the Court will focus primarily on the subjective component of 

Hilyer’s Eighth Amendment claim, which generally "inquires whether the officials acted 

with a sufficiently culpable state of mind." Sims, 25 F.3d at 983-84 (citing Hudson v. 

McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992)). The Supreme Court 

has declared that an official must have acted with deliberate indifference to a risk in order 

to implicate the Eighth Amendment. In defining "deliberate indifference," the Supreme 

Court in Farmer stated:

With deliberate indifference lying somewhere between the poles of 

negligence at one end and purpose or knowledge at the other, the Courts of 

Appeals have routinely equated deliberate indifference with recklessness. 

See e.g., LaMarca v. Turner, 995 F.2d 1526, 1535 (CA11 1993).... It is, 

indeed, fair to say that acting or failing to act with deliberate indifference

to a substantial risk of serious harm to a prisoner is the equivalent of 

recklessly disregarding that risk. 

Farmer, 511 U.S. at 836. Thus, the Court concluded that the "subjective recklessness" 

standard of criminal law is the test for "deliberate indifference" under the Eighth 

Amendment. Id. at 839-40. Under this test, there is no liability for "an official's failure 

to alleviate a significant risk that he should have perceived but did not . . . ." Id. at 838. 

It is not enough that an inmate proves that the defendant should have known of the risk, 

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but did not, as actual knowledge is the key. See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 

1491 (11th Cir. 1996). 

Thus, the undersigned must determine whether Plaintiff Hilyer has sufficiently 

alleged that each defendant seeking summary judgment was deliberately indifferent to a

serious need. 

1. Katherine Gibson, Administrator of Corizon Health Services.

Hilyer alleges in his complaint that Gibson exhibited “carelessness, 

unskillfulness, and medical negligence in violation of [his] constitutional rights.” (Doc. 

7-1 at 6; Doc. 9 at 5). Negligence, however, is not a constitutional violation. Taylor v. 

Adams, 221 F.3d 1254 (11th Cir. 2000) (To establish deliberate indifference to a serious 

medical need, a plaintiff must show “the response made by public officials to that need 

was poor enough to constitute ‘an unnecessary and wanton infliction of pain,’ and not

merely accidental inadequacy, ‘negligence in diagnosis or treatment,’ or even ‘medical 

malpractice’ actionable under state law.”)(internal citations omitted)). Even looking 

beyond the specified allegations and liberally construing Hilyer’s complaint, it falls short 

of the necessary elements to support a § 1983 claim, as it completely lacks facts 

establishing deliberate indifference on the part of any defendant.3 

 3 Any attempt on the part of Hilyer to assert a medical malpractice claim related to the 

alleged facts must be brought pursuant to “The Alabama Medical Liability Act” (AMLA), ALA.

CODE §§ 6-5-541 et seq. The AMLA applies to “any action for injury or damages or wrongful 

death, whether in contract or in tort, against a healthcare provider for breach of the standard of 

care.” See ALA. CODE § 6-5-548(a). The AMLA contains heightened factual pleading 

requirements, see § 6-5-551, and plaintiff bears the burden of proving his case. See Willard v. 

Perry, 611 So. 2d 358 (Ala. 1992) (As part of tort reform, the enactment of the AMLA did away 

with the “scintilla rule” of evidence in medical malpractice cases and increased the level of proof 

needed to survive summary judgment to that of “substantial evidence.”); Edgeworth v. Family 

Chiropractic & Health Ctr., P.C., 940 So. 2d 1011 (Ala. 2006) (Plaintiff bears the burden of 

proof in medical malpractice case.); McAfee by & through McAfee v. Baptist Medical Ctr., 641 

So. 2d (Ala. 1994) (Plaintiff must prove the alleged negligence through expert testimony, unless 

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A review of the Alabama Department of Corrections’ Medication Administration 

Record reveals that Hilyer was scheduled to receive two daily doses of Keppra , at 4:00 

a.m. and 4:00 p.m., respectively, and three daily doses of Dilantin , at 4:00 a.m., 11:00 

a.m., and 4:00 p.m., respectively. (Doc. 30-6 at 34). The log confirms that Hilyer 

received all prescribed daily doses (of both medications) on April 16, 17, and 19, 2015. 

(Id.). Thus, the record evidence before the Court demonstrates that Hilyer was not 

without his anti-seizure medications for the entire week as he alleges in his complaint. 

(See Doc. 7-1 at 6; Doc. 9 at 5). However, the record does reflect numerous missed 

medication doses throughout the week in question, as discussed below. 

On April 15, 2015, the medication log reveals Hilyer’s morning doses of 

medication were administered at the infirmary. (Doc. 30-6 at 34). Subsequently, Hilyer 

was discharged from the infirmary at Fountain and transferred to J.O. Davis. (Doc. 30-6 

at 34; Doc. 9-1 at 1). Upon arrival at J.O. Davis, Plaintiff Hilyer reportedly missed his 

evening doses of medications, as the log dictates on April 15, 2015, the 4:00 p.m. dose of 

Keppra and Dilantin were not administered due to Hilyer’s failure to show up for pill call 

at this time. (Doc. 30-6 at 34). 

On April 16 and 17, 2015, Hilyer received all doses of medication as prescribed. 

(Id.).

 

an understanding of the alleged lack of due care or skill requires only common knowledge or 

experience.). 

Given that this report recommends the dismissal of alleged federal claims and Hilyer’s 

failure to specify intent to pursue a medical malpractice claim, the undersigned declines to 

exercise supplemental jurisdiction over such potential state law medical malpractice claim. 28 

U.S.C. § 1367(c)(3); Scarfo v. Ginsberg, 175 F.3d 957 (11th Cir. 1999), cert. denied, 529 U.S. 

1003 (2000).

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On April 18, 2015, the second missed dose is noted; one dosage of Dilantin to be 

given at 11:00 a.m. is logged as unadministered, also due to Hilyer’s failure to show up 

for pill call. (Id.). 

On April 19, 2015, all medications were again administered as prescribed. (Id.).

On April 20, 2015, Defendant admits and the record confirms that the prison 

pharmacy ran out of Keppra, thus Hilyer was not given either dose of Keppra on this day, 

but he received all three doses of Dilantin on the 20th. (Id.; Doc. 30 at 5). 

On April 21, 2015, the record indicates Hilyer was a “no show” for the morning 

medication doses (one dose of Keppra and two doses of Dilantin). (Id.). It is on this day 

that Hilyer was transferred to Loxley Work Release. (Doc. 30 at 5). Plaintiff contends 

approximately two hours after arriving at Loxley Work Release, he suffered the seizure 

subject of this action. (Doc. 9-1 at 1). Subsequent to the seizure, the nursing staff at 

Loxley Work Center examined Hilyer, and Defendant submits that Hilyer told the nurse 

that he had been without his seizure medication for a week. (Doc. 30- at 6). Hilyer 

claims “[t]he nurse at Loxley said she couldn’t believe they sent me without my meds 

and that they had let me run out.” (Doc. 9 at 10). At 6:11 p.m. orders were given to 

transfer Hilyer from Loxley Work Center to the infirmary at Fountain Correctional 

Center. (Doc. 30-11 at 1). Hilyer was immediately bused back to the infirmary at 

Fountain and received medical attention at 7:35 p.m. (Doc. 30-11 at 3). Although the 

infirmary staff observed “no seizure-like activity” upon examination of Hilyer, he was 

held for monitoring. (Id.). 

Notably, the medication administration record shows that on the evening of April 

21, 2015, Hilyer received one dose of Keppra and one dose of Dilantin, both at 5:30 p.m., 

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administered by staff initials “LM” and “TS”. (Doc. 30-6 at 34). These staff initials are 

consistently found in the log associated with the nursing staff at Fountain’s infirmary. 

(Id.). Thus, it appears from the records that Hilyer received a dose of his medications 

immediately upon the return to Fountain’s infirmary following his seizure at Loxley 

Work Release (despite the logged time of dispense being inaccurately recorded). 

While the seriousness of Plaintiff’s condition obviously necessitates strict

adherence to prescribed treatment plans, namely anti-seizure medications, the claims 

alleged and the evidence of record do not rise to the level of a constitutional violation 

and, instead, represent negligence at worst. Isolated incidents of missed medication and a 

medical emergency do not establish deliberate indifference. Bishop v. Orr, 180 F. App’x 

505 (5th Cir. 2006) (On two occasions, lasting several days, plaintiff did not receive his 

prescribed medication and suffered injury after falling due to two seizures; however, 

defendants noted the missed medication and reordered the same; thus, no deliberate 

indifference was established.); but see Duncan v. Corr. Med. Servs., 451 F. App’x 901, 

902-04 (11th Cir. 2012) (summary judgment was denied where plaintiff failed to receive 

several medications, one for a month, another for 22 days, and a third medication was 

denied for more than a month, causing him to be rushed to the hospital on 5 occasions); 

Nun v. Bracey, No. 89-6308, 1991 U.S. App. LEXIS 2501 (6th Cir., Feb. 11, 1991) 

(deliberate indifference established where defendants denied plaintiff’s repeated requests 

for epilepsy medication and ultimately suffered a seizure and bodily injury); Neal v. 

Foster, No. 3:12-cv-938, 2012 U.S. Dist. LEXIS 135311 (M.D. Tenn., Sept. 21, 2012) 

(deliberate indifference established where epileptic medications were suddenly stopped 

and plaintiff suffered 13 seizures as a result). "It is obduracy and wantonness, not 

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inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel 

and Unusual Punishment Clause." Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 

89 L. Ed. 2d 251 (1986). 

Anyone suffering a chronic condition would reasonably expect to have a 

regular supply of the necessary medications. In this case, plaintiff suffered 

a temporary cessation in receiving his medication. Assuming, for purposes 

of argument, that plaintiff can show the seizures he suffered were caused 

by the missed doses of [medication], the facts he has alleged, while clearly 

unfortunate, do not rise above the level of negligence. Consequently, 

plaintiff's allegations, while they might support a claim of negligence or 

malpractice against one or more of the defendants, do not support a claim 

that the defendants, or any of them, were deliberately indifferent, that is, 

that they acted or failed to act in the knowledge that they were creating a 

substantial risk of serious harm to plaintiff. Farmer v. Brennan, 511 U.S. 

825, 114 S. Ct. 1970, 1981, 128 L. Ed. 2d 811 (1994).

Bishop v. Orr, 2004 U.S. Dist. LEXIS 24765, *26-28, 2004 WL 2826467 (N.D. Tex. 

Dec. 9, 2004), aff’d 180 F. App’x 505 (5th Cir. 2006).

As to the case at hand, the certified Medication Administration Record of the 

Alabama Department of Corrections and the sworn affidavit of Defendant Gibson 

evidences that the missed doses of medication on April 15, 18, and 21 were due to 

Plaintiff’s failure to show up for pill call and not due to Defendant’s actions.4 Thus, the 

undersigned concludes that the only potential liability claim in the complaint relates to 

the two Keppra doses missed on April 20, 2015, when the prison pharmacy ran out of the 

anti-seizure medication. 

 4 The corresponding days of intra-prison transfers and missed medications create a 

noticeable pattern, yet the record is silent as to any allegations that medications were skipped or 

missed due to the transfers. Additionally, the undisputed record before the court clearly details 

that Plaintiff is liable for all missed doses of anti-seizure medication but for the Keppra doses on 

April 20, 2015. Therefore, without objection to the Medication Administration Record or the 

affidavits of the defendants, the undersigned relies on the record. 

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As to this missed dose, Defendant avers that the Keppra medication was 

immediately reordered on April 20, 2015, once its depletion was realized, and Plaintiff 

received all three doses of his Dilantin medication on that day. Plaintiff Hilyer does not 

dispute this, nor has he objected to Defendant’s assertion that all other missed doses of 

medication were due to his failure to show for pill call. (See Doc. 32). While failing to 

dispense medication exactly as prescribed may constitute negligence, see Jones v. United 

States, 91 F.3d 623, 625 (3d Cir. 1996), it falls severely short of deliberate indifference. 

Zentmyer v. Kendall Cnty., 220 F.3d 805, 812 (7th Cir. 2000) (Deliberate indifference is 

an onerous standard for the plaintiff, and forgetting doses of medicine, however 

incompetent, is not enough to meet it.). Also, the record is void of any suggestion that 

defendants were aware that the failure to administer one anti-seizure medication, Keppra, 

while receiving complete doses of another anti-seizure medication, Dilantin, would likely 

result in injury. Thus, there is no evidence before the court of deliberate indifference of 

the part of defendants, only the unfortunate occasion that the pharmacy ran out of Keppra 

on April 20, 2015. Mahan v. Plymouth Cnty. House of Corrs., 64 F.3d 14, 18 (1st Cir. 

1995) (Failure to administer prescription medication did not constitute deliberate 

indifference absent evidence that prison officials knew the plaintiff would suffer serious 

medical consequences without medication). Additionally, Plaintiff received immediate 

and proper care upon notification of his seizure on April 21, 2015. Thus, the record 

belies the contention that defendants provided inadequate medical care or treatment to 

Plaintiff, and it is recommended that summary judgment be granted in favor of Defendant 

Gibson. 

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2. Jefferson Dunn, Commissioner of the Alabama Department of 

Corrections. 

Plaintiff Hilyer presents two claims against Defendant Dunn. The first 

corresponds to the previously discussed Eighth Amendment violation asserted against 

Defendant Gibson; Hilyer claims Defendant Dunn is responsible, as a supervisory 

official, for the missed doses of anti-seizure medication. (Doc. 7-1 at 6; Doc. 9 at 5). 

This claim fails for two reasons. First, the court has determined no constitutional 

violation has occurred related to the missed doses of anti-seizure medication. Second, 

such a claim that Defendant Dunn is liable as Defendant Gibson’s supervisor is a claim 

rooted in the theory of respondeat superior and is not cognizable in a § 1983 action. 

Edwards v. Ala. Dep't of Corrs., 81 F. Supp. 2d 1242, 1255 (M.D. Ala. 2000) ("A theory 

of respondeat superior is not sufficient to support [a] § 1983 claim. . . ."); see also Duff v. 

Steubb, 378 F. App’x 868 (11th Cir. 2010) (“Deliberate indifference can be based on the 

defendant's personal participation in the allegedly unconstitutional conduct or on the 

defendant's actions as a supervisor.").

"It is well established in this Circuit that supervisory officials are not 

liable under § 1983 for the unconstitutional acts of their subordinates on 

the basis of respondeat superior or vicarious liability." Hartley v. Parnell, 

193 F.3d 1263, 1269 (11th Cir. 1999) (internal quotation marks and 

citation omitted); Gonzalez, 325 F.3d at 1234, 2003 WL 1481583, at *4 

(concluding supervisory officials are not liable on the basis of respondeat 

superior or vicarious liability). Instead, supervisory liability under § 1983

occurs either when the supervisor personally participates in the alleged 

unconstitutional conduct or when there is a causal connection between the 

actions of a supervising official and the alleged constitutional deprivation. 

Gonzalez, 325 F.3d at 1235, 2003 WL 1481583, at *5; Brown v. 

Crawford, 906 F.2d 667, 671 (11th Cir. 1990). The necessary causal 

connection can be established "when a history of widespread abuse puts 

the responsible supervisor on notice of the need to correct the alleged 

deprivation, and he fails to do so." Gonzalez, 325 F.3d at 1234, 2003 WL 

1481583, at *5 (quoting Braddy v. Fla. Dept. of Labor & Emp’t, 133 F.3d 

797, 802 (11th Cir.1998)); Brown, 906 F.2d at 671. Alternatively, the 

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causal connection may be established when a supervisor's "'custom or 

policy ... result[s] in deliberate indifference to constitutional rights'" or 

when facts support "an inference that the supervisor directed the

subordinates to act unlawfully or knew that the subordinates would act 

unlawfully and failed to stop them from doing so." Gonzalez, 325 F.3d 

at , 2003 WL 1481583, at *5 (quoting Rivas v. Freeman, 940 F.2d 1491, 

1495 (11th Cir. 1991)); Hartley, 193 F.3d at 1263; see also Post v. City of 

Ft. Lauderdale, 7 F.3d 1552, 1560-61 (11th Cir. 1993). "The standard by 

which a supervisor is held liable in [his] individual capacity for the actions 

of a subordinate is extremely rigorous." Gonzalez, 325 F.3d at 1234, 2003 

WL 1481583, at *4 (internal quotation marks and citation omitted).

Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). In instances where supervisory 

liability is based on a supervisor's custom or policy, a plaintiff must show that the custom 

or policy was "the 'moving force [behind] the constitutional violation.'" Pinkney v. Davis, 

952 F. Supp. 1561, 1569 (M.D. Ala. 1997) (citations omitted). "[I]t is clear that not only 

must there be some degree of 'fault' on the part of [defendant] in establishing the policy 

or tolerating the custom, but there must be a causal link between the custom or policy and 

the constitutional deprivation." Id. (citations omitted). 

Hilyer has posited no allegations or facts connecting Defendant Dunn to an

unconstitutional policy or custom regarding the administration or withholding of 

prescription medication from inmates. Given that Hilyer fails to personally link actions 

of Defendant Dunn to a claim, the undersigned determines that Hilyer has failed establish 

a valid Eighth Amendment claim and summary judgment should be granted in favor of 

Defendant Dunn. 

The second claim asserted against Defendant Dunn is for the alleged failure of the 

Alabama Department of Corrections (ADOC) to provide free medical care in violation of 

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the Eighth Amendment.5 In analyzing this claim, the court starts with the necessary 

requirements to bring a civil rights claim against a state actor. 

In order "[t]o sustain a cause of action based on section 1983, [a plaintiff] must 

establish two elements: (1) that [he] suffered a deprivation of rights, privileges or 

immunities secured by the Constitution and laws of the United States, and (2) that the act 

or omission causing the deprivation was committed by a person acting under color of 

law." Wideman v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987) 

(internal quotations and citation omitted). Hilyer, however, fails to establish the 

deprivation of a constitutional right, as courts have held a prisoner does not have a 

“general constitutional right to free health care.” Reynolds v. Wagner, 128 F.3d 166, 174 

(3d Cir. 1997). 

It is clearly established that the constitution imposes on governments a duty to 

provide medical care to those in its custody. See Estelle v. Gamble, 429 U.S. 97, 103-04, 

97 S. Ct. 285, 50 L.Ed.2d 251 (1976) (determining the Eighth Amendment requires 

adequate medical care be provided to convicted prisoners); Bell v. Wolfish, 441 U.S. 520, 

535, 99 S. Ct. 1861, 60 L.Ed.2d 447 (1979) (finding the Due Process Clause requires the 

government to provide adequate medical care for pretrial detainees and those 

apprehended by the police). The reasoning behind this obligation is simple, "it is but just 

that the public be required to care for the prisoner, who cannot by reason of the 

 5 In his complaint, Hilyer states, “I feel as if I am being punished for having cancer. . . I’m 

receiving bills from collection agencies for medical tests and Life Flight . . . .” (Doc. 9-1 at 2). 

Although Hilyer does not articulate the constitutional right under which he asserts his claim, the 

undersigned interprets this allegation as an attempt to state a claim against Defendant Dunn for 

the failure of the ADOC to provide free medical care in violation of the Eighth Amendment’s 

prohibition against cruel and unusual punishment, which has been interpreted to require the 

provision of medical care. 

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deprivation of his liberty, care for himself." Estelle, 429 U.S. at 104 (quoting Spicer v. 

Williamson, 132 S.E. 291, 293 (N.C. 1926). However, the constitutional duty to provide

medical care to prisoners is not the same as the requirement to pay for it. See City of 

Revere v. Massachusetts General Hosp., 463 U.S. 239, 245, 103 S. Ct. 2979, 77 L.Ed.2d 

605 (1983).6 As stated by the Supreme Court in City of Revere, 

as long as the governmental entity ensures that the medical care needed is 

in fact provided, the Constitution does not dictate how the cost of that care 

should be allocated as between the entity and the provider of the care. 

That is a matter of state law. If, of course, the governmental entity can 

obtain the medical care needed for a detainee only by paying for it, then it 

must pay. There are, however, other means by which the entity could meet 

its obligation. 

City of Revere, 463 U.S. at 245. Given that there is no per se constitutional right to free 

health care, the undersigned finds that the determination of whether or not Defendant 

Dunn is responsible for the costs of Hilyer’s medical care is solely a state law question.

7

 

 6 In City of Revere, a hospital, who provided medical treatment to a detainee shot by a 

police officer, brought suit against the city for the cost of medical services rendered based on 

interpretation of the Eighth Amendment’s requirement of government to provide medical care to 

those it incarcerates. The Supreme Court reviewed the case pursuant to the Fourteenth 

Amendment’s Due Process Clause, however, since the medical care was provided to a pretrial 

detainee instead of a convicted prisoner. The Court reasoned, that under either standard, the 

constitutional obligation was fulfilled by promptly attending to the medical needs and obtaining 

needed medical treatment for the person in custody. City of Revere, 463 U.S. at 244-45 

(“Whatever the standard may be, Revere fulfilled its constitutional obligation by seeing that 

Kivlin was taken promptly to a hospital that provided the treatment necessary for his injury.”). 

The Court went further to state, “[n]othing we say here affects any right a hospital or 

governmental entity may have to recover from a detainee the cost of the medical services 

provided to him.” Id. at n.7. 

7 The ALA. CODE §14-3-30 (1975) states, “[w]hen an inmate sentenced to the custody of 

the department . . . develops a medical condition which requires immediate treatment at a 

medical-care facility outside the [] jail, the department shall be financially responsible for the cost 

of the treatment of the inmate. . . .” Additionally, the legislature has made possible for inmates, 

otherwise eligible for Medicaid benefits, to be “eligible for temporary reinstatement of Medicaid 

eligibility for care received outside of such a public institution as an inpatient in a medical 

institution for more than 24 hours.” ALA. CODE § 22-6-12(b) (1975). 

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Notably, there appears to be no need to determine whether or not supplemental 

jurisdiction should be extended to this state law claim, as the claim is moot. 

In a Supplemental Special Report, Defendant Gibson affirms that “[a]ll medical 

bills and invoices from outside medical providers, forwarded to Fountain Correctional 

Facility, are supposed to be sent directly to Corizon personnel for the medical bills and 

invoices to be paid.” (Doc. 34 at 5). In the event an inmate inadvertently receives a 

medical bill or invoice, the inmate is instructed to forward the bill to Corizon’s medical 

staff. (Id.). Defendant Gibson further avers:

The medical bill from the Life Flight Services was obviously inadvertently 

not caught by the mail room at Fountain and it was mistakenly forwarded 

to Mr. Hilyer. 

The Life Flight Medical bill has been paid by Corizon and Mr. Hilyer was 

never responsible for payment of the Life Fight services invoice. 

During Mr. Hilyer’s incarceration with the Alabama Department of 

Corrections, he has at no time been responsible for payment of his health 

care related services besides the ADOC co-pay for non-chronic care 

related health treatment.

All of Mr. Hilyer’s medical expenses during the time of his incarceration 

have been paid and Mr. Hilyer at no time has been responsible for 

payment of any of his health care related services, either those health 

related services provided internally at the correctional facility or those 

provide externally by outside medical providers. 

(Doc. 34 at 5-6). Although given ample time to respond to the Supplemental Special 

Report, Plaintiff has failed to do so. (Doc. 33). Thus, the facts submitted in the 

supplemental report are undisputed, and the undersigned finds that this potential state law 

claim is moot, at this time, as all Plaintiff Hilyer’s medical bills have been paid to date. 

As such, it is recommended that Defendants be granted summary judgment on this claim 

and that the claim be dismissed from this action.

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3. Shawn Geohagen, Certified Registered Nurse Practitioner. 

Plaintiff Hilyer is suing the final defendant in this action, Defendant Nurse 

Geohagen, for denial of an amended food profile and vitamins and delayed medical 

treatment. (Doc. 18 at 1). 

Pursuant to the Eighth Amendment, prisoners must be provided “basic humans 

needs – e.g., food, clothing, medical care, and reasonable safety. . . .” Helling v. 

McKinney, 509 U.S. 25, 31-32, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22 (1993), quoting

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200, 109 S. 

Ct. 998, 1005-1006, 103 L. Ed. 2d 249 (1989). However, the right to food is that of “[a] 

well-balanced meal, containing sufficient nutritional value to preserve health.” Smith v. 

Sullivan, 553 F.2d 373, 380 (5th Cir. 1977). A claim for deprivation of food is 

established only by showing the denial of the “minimal civilized measure of life’s 

necessities,” Wilson v. Seiter, 501 U.S. 294, 303, 111 S. Ct. 2321, 115 L.Ed.2d 271 

(1991), as "the Constitution does not mandate comfortable prisons." Rhodes v. Chapman, 

452 U.S. 337, 349, 101 S. Ct. 2392, 69 L.Ed.2d 59 (1981). If prison conditions are 

merely "restrictive and even harsh, they are part of the penalty that criminal offenders pay 

for their offenses against society." Id. at 347. Generally speaking, prison conditions rise 

to the level of an Eighth Amendment violation only when they "involve the wanton and 

unnecessary infliction of pain." Id.; Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 

2004). 

To prevail on [an] Eighth Amendment claim for damages brought under 

section 1983, the plaintiffs must prove three elements: (1) a condition of 

confinement that inflicted unnecessary pain or suffering, Rhodes v. 

Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399 (1981), (2) the 

defendant's "deliberate indifference" to that condition, Wilson v. Seiter,

[501] U.S. [294], 111 S. Ct. 2321, 2327 (1991), and (3) causation, 

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Williams v. Bennett, 689 F.2d 1370, 1389-90 (11th Cir. 1982). For our 

purposes, the Eighth Amendment defines the contours of the first two 

elements and section 1983 delimits the third. 

LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993), cert. denied, 510 U.S. 1164, 

114 S. Ct. 1189, 127 L. Ed. 2d 539 (1994) (citations omitted). Under the objective 

component Hilyer must show that a condition "pose[s] an unreasonable risk of serious 

damage to his future health or safety" and that the "risk of which he complains is not one 

that today's society chooses to tolerate[;]” thus, the challenged condition must be 

"extreme" and violate "contemporary standards of decency to expose anyone unwillingly 

to such a risk." Chandler, 379 F.3d at 1289-90, citing Helling, 509 U.S. at 36, 113 S.Ct. 

at 2482. The subjective component requires that Hilyer show that Defendant Geohagen 

“wantonly permitted the constitutionally infirm condition to persist” while “knowingly or 

recklessly disregard[ing] [Hilyer’s] basic needs.” LaMarca, 995 F.2d at 1535. The third 

component, “requires proof of an affirmative causal connection between the actions taken 

by a particular person 'under color of state law' and the constitutional deprivation." Id. at 

1538, quoting Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir. 1982). 

Hilyer contends that on November 18, 2015, his requests for a food profile 

change, to receive a diabetic fruit tray, and vitamins were denied by Defendant 

Geohagen. (Doc. 18 at 1; Doc. 30-11 at 7). This claim, however, falls significantly short 

of a constitutional violation. The complaint is void of allegations that Hilyer was 

nutritionally deficient in any way or that medical staff had prescribed Hilyer vitamins or 

indicated a need for additional fruit at meals. Instead, the evidence presented indicates 

that Hilyer received the standard prisoner’s diet of three meals a day and simply desired 

the extra fruit given to inmates with a diagnosis of diabetes and the extra vitamin intake. 

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The deprivation of food constitutes cruel and unusual punishment only where it denies a 

prisoner the minimal civilized measure of life’s necessities. See Whitlock v. Merchant, 

2015 U.S. Dist. LEXIS 129133 (E.D. Tex. July 24, 2015) (Denial of special diet for high 

blood pressure and cholesterol levels did not represent a constitutional violation.); Musto 

v. Trinity Food Servs., 2010 U.S. Dist. LEXIS 94063 (M.D. Fla. Sept. 9, 2010) (Denial of 

bread and desserts from kosher diet did not rise to level of constitutional violation.); 

McClure v. Tex. Dep’t Crim. Justice-Corr. Insts. Div., 2011 U.S. Dist. LEXIS 20560 

(E.D. Tex. Jan. 31, 2011) (Complaint of prison meals lacking fruits and vegetables, 

amongst other satiating claims, did not constitute an Eighth Amendment violation.). 

Here, Hilyer as plainly failed to show a constitutional violation related to denial of food 

or condition of confinement, as the denial of a fruit tray and vitamins violate 

“contemporary standards of decency” nor does it demonstrate a condition so extreme that 

society cannot tolerate it. Chandler, 379 F.3d at 1289-90. Thus, this allegation fails to 

objectively state a valid Eighth Amendment claim and, therefore, should be dismissed. 

Hilyer also claims that Defendant Geohagen denied him medical care. The record 

evidence reflects that Hilyer received a brain MRI on April 29, 2015, and was ordered for 

a follow-up MRI with contrast in three months. (Doc. 30-11 at 41). The follow-up MRI 

scan was performed on July 16, 2015, and revealed “[n]o interval change in the 

appearance, size, or extent of infiltrating tumor from the postoperative brain MRI on 

4/29/2015. No evidence of worsening or regression.” (Doc. 30-5 at 27). On July 30, 

2015, it was ordered that another follow-up MRI be taken in three months to assess the 

status of Hilyer’s brain tumor (Doc. 30-11 at 48; Doc. 30-5 at 28, 31-32); it is this scan 

which Hilyer contends was delayed by Defendant Geohagen. 

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Based on the dates provided, the MRI at issue should have been performed in 

October 2015; however, Hilyer contends and the record reflects he did not receive the 

follow-up brain MRI until December 10, 2015. (Doc. 30-5 at 36). The MRI scan 

obtained on December 10, 2015, reported that the brain tumor showed “[n]o significant 

interval change from prior MRI without and with contrast. . . . Stable brain MRI 

compared with 7/16/2015.” (Id. at 38). 

As alleged by Hilyer, a "[d]elay in access to medical attention can violate the 

Eighth Amendment . . . when it is tantamount to unnecessary and wanton infliction of 

pain." Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994), 

overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730, 739 n. 9, 122 S. Ct. 

2508, 153 L. Ed. 2d 666 (2002) (internal citations and quotation marks omitted).

However, to succeed in proving that the delay of medical care rose to a constitutional 

violation, Hilyer "must place verifying medical evidence in the record to establish the 

detrimental effect of delay in medical treatment to succeed. . . . Consequently, delay in 

medical treatment must be interpreted in the context of the seriousness of the medical

need, deciding whether the delay worsened the medical condition, and considering the 

reason for delay. Id. at 1188-89 (internal citations omitted) (footnotes omitted); see also, 

Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009). 

Although Hilyer’s follow-up brain MRI was received a month to a month and a 

half later than ordered by his oncologist, the results of the scan are conclusive that 

Hilyer’s tumor was unchanged since the previous scan in July and April of 2015. The 

record, therefore, belies any claim that Hilyer was harmed or that his condition was 

worsened by the delay in receiving the follow-up MRI. Thus, Hilyer fails to establish an 

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Eighth Amendment claim for denial or delay in medical care, and Defendant should be 

granted summary judgment on such claim.

IV. Conclusion.

Based on the foregoing, it is recommended that Defendants’ Motion for Summary 

Judgment be granted, that Plaintiff Hilyer’s action against Defendants Gibson, Dunn, 

and Geohagen be dismissed with prejudice.

The instructions that follow the undersigned’s signature contain important 

information regarding objections to the report and recommendation of the Magistrate 

Judge.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in it 

must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D. ALA. L.R. 72(c). The parties should note that under Eleventh Circuit Rule 3-

1, “[a] party failing to object to a magistrate judge's findings or recommendations 

contained in a report and recommendation in accordance with the provisions of 28 U.S.C. 

§ 636(b)(1) waives the right to challenge on appeal the district court's order based on 

unobjected-to factual and legal conclusions if the party was informed of the time period 

for objecting and the consequences on appeal for failing to object. In the absence of a 

proper objection, however, the court may review on appeal for plain error if necessary in 

the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection must 

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identify the specific finding or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the Magistrate Judge is not 

specific. 

DONE this 28th day of October, 2016

/s/ Katherine P. Nelson

UNITED STATES MAGISTRATE JUDGE

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