[See update at end of article] 

by David M. Reutter

On May 22, 2023, the U.S. Court of Appeals for the Eleventh Circuit affirmed the grant of summary judgment to Defendant officials at Georgia’s Walker State Prison (WSP), where a prisoner accused them of deliberate indifference to his seizure condition by failing to provide anti-seizure medication over a four-day period, resulting in a seizure that caused brain damage.

Before the Court was the appeal of prisoner David Henegar. His federal civil rights complaint concerned events that occurred at WSP from August 28 to August 31, 2016. While at WSP, Henegar was diagnosed with epilepsy, which was well-controlled with a daily anticonvulsant called Dilantin. As his prescription was running out on August 23, 2016, nurse Mary Ann Melton ordered a refill. She then went on leave, and nurse Julie Harrell assumed her duties. Medications typically arrive within one to two days from the state Department of Corrections (DOC) pharmacy, but Henegar’s Dilantin did not arrive until August 31, 2016.

Before that, though, he appeared for pill line on August 28, 2026, because his prescription had run out. He was not given Dilantin. This process repeated itself over another three days. On all four days, notations were made that Henegar did not receive Dilantin. But no action was taken to resolve the delay or to provide Dilantin from the prison’s standard ward inventory.

About two hours after pill call on the evening of August 31, 2023 – and after four days of being without Dilantin – “Henegar suffered a nearly 20-minute seizure that induced status epilepticus,” the Eleventh Circuit recalled, “a condition that can cause brain damage.” Henegar was transported to a hospital and returned to the prison in the early morning hours. Two hours later, “Henegar suffered another seizure that left him oxygen-deprived for about 20 minutes,” the Court continued. He was not examined by a nurse at the prison until one came on duty about two and a half hours later. Henegar was then again sent out to the hospital for treatment.

But as a result of the incident, the delay in receiving the medication was investigated, and policy on anti-seizure medication administration was changed to administrative hours to assure proper oversight in case of delays. Following the incident, Henegar regularly received his medication for the next year until his release.

Henegar then sued under 42 U.S.C. § 1983, alleging two guards and three nurses were deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment guarantee of freedom from cruel and unusual punishment. The federal court for the Northern District of Georgia granted Defendant prison officials’ motion for summary judgment based on qualified immunity (QI). Henegar by that point was dead, so his case was assumed by his sister, Betty Wade, and she appealed.

A three-judge panel for the Eleventh Circuit then said that “our case law regarding a deliberate indifference claim’s mens rea [criminal intent] requirement has been hopelessly confused, resulting in what we’ll charitably call a ‘mess.’” Twice the Court had attempted cleanup, it added, but “panels continue to flip-flop between two competing formulations: ‘more than mere negligence’ and ‘more than gross negligence.’” As the standard is dispositive as to two of the defendants, the Court hoped to definitively resolve the issue.

“The confusion in our case law,” the Court explained, “arose in the wake of the Supreme Court’s decision in Farmer v. Brennan, 511 U.S. 825 (1994), which said that ‘[w]hile Estelle [v. Gamble, 429 U.S. 97 (1976)] establishes that deliberate indifference entails something more than mere negligence, the cases are clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”

The panel cited Eleventh Circuit cases on both sides of the issue, focusing on two cases that highlight the dispute. In Townsend v. Jefferson County, 601 F.3d 1152 (2010), the Court embraced the “more than gross negligence” standard, citing Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1986) as controlling. But in Melton v. Abston, 841 F.3d 1207 (11th Cir. 2016), the Court cited McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999) as controlling – and the McElligott court had adopted the “more than mere negligence” standard.

The current panel rejected the Melton panel’s ruling. “With all due respect to the Melton panel, under our prior panel-precedent rule, it had no authority to ‘disagree with’ Townsend” and the matters settled by that panel,” the Court said. Stating it too was bound by Townsend, the Court said “[t]hus, [t]o make out the subjective component of an Eighth Amendment deliberate indifference claim, a plaintiff must establish the defendant (1) had subjective knowledge of the serious risk of serious harm, (2) disregarded that risk, and (3) acted with more than gross negligence.”

The Court then turned to the merits of the appeal. It found the guards lacked the requisite subjective knowledge to defeat their presumption of QI – that unmedicated seizure disorder constituted a serious medical risk. The conduct of Nurses Julie Harrell and Sherri Lee was “regrettable, and we think it was more likely more than merely negligent,” the Court continued. “But it is axiomatic that simple medical malpractice does not rise to the level of a constitution violation.” Nurse Cindy McDade was also sued for failing to properly supervise Harrell and Lee, but the facts alleged were insufficient to impose policy-based supervisory liability on her, the Court added. Thus the district court’s order was affirmed. See: Wade v. McDade, 67 F.4th 1363 (11th Cir. 2023).

UPDATE: On October 11, 2023, the Eleventh Circuit granted rehearing en banc and vacated the panel opinion in this case. See: Wade v. Ga. Corr. Health, LLC, 83 F.4th 1332 (11th Cir. 2023). The panel opinion is no longer binding authority in the Eleventh Circuit. PLN will report the en banc decision once the case is decided. 

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