Full opinion text
OPINION AND ORDER FORRESTER, Senior District Judge. This matter is before the court on the motion of Defendants Coweta County, Mike Yeager, Major Blake Adcock, and Jennie Adcock for summary judgment [143] and their motion to exclude the expert testimony of Dr. Robert Greifinger pursuant to Federal Rule of Evidence 702[146]; the motion of Defendant State of Georgia for summary judgment [148]; the motion of Defendants Integrated Regional Laboratories, E.C.H.A. Peachtree, L.L.C., and E.C.H.A., L.L.C., for leave to file excess pages [142], their motion for summary judgment [150], and their final motion to exclude testimony of Robert Greifinger, M.D., and Michael McGinnis, Ph.D. [151]; the motion in limine of Defendants Miriam J. Burnett and MJB Health Services, Inc., to exclude the testimony of Robert Greifinger, M.D. [153], and their motion for summary judgment [154], their motion to compel payment of expert deposition fees pursuant to Federal Rule of Civil Procedure 26, Federal Rule 37 and 28 U.S.C. § 1927[219], their motion to strike, their motion to compel payment of expert deposition fees pursuant to Federal Rule of Civil Procedure 26, Federal Rule 37 and 28 U.S.C. § 1927[220], and their motion to compel payment of expert deposition fees pursuant to Federal Rule of Civil Procedure 26, Federal Rule of Civil Procedure 37 and 28 U.S.C. § 1927[221]; and Plaintiffs motion to bring additional authority [188], his motion for oral argument [189], and his motion to strike [187] reply to response to motion, argument I[190]. I. Statement of the Case A. Procedural History On February 12, 2003, Tommy Dukes (hereinafter “Plaintiff’) filed suit against Defendants, State of Georgia (hereinafter “Defendant Georgia”), Coweta County (hereinafter “Defendant Coweta”), Integrated Regional Laboratories (hereinafter “Defendant IRL”), E.C.H.A. Peachtree, L.L.C., and E.C.H.A., L.L.C. (hereinafter collectively “Defendant Emory”), Sheriff Mike Yeager (hereinafter “Defendant Yeager”), Major Blake Adcock (hereinafter “Defendant Blake Adcock”), Nurse Jennie Adcock (hereinafter “Defendant Jennie Adcock”), Dr. Miriam J. Burnett and Dr. Miriam J. Burnett, P.C. (hereinafter together as “Defendant Burnett”), and Sgt. Bobby Stozier. Later, on April 28, 2003, Plaintiff amended his complaint to substitute MJB Health Services for Defendant Dr. Miriam J. Burnett, P.C. Plaintiff brought claims against Defendant Stozier for unreasonable seizure and false imprisonment. On August 31, 2004, the court denied Plaintiffs motion for summary judgment and granted Defendant Strozier’s motion for summary judgment. Pursuant to that order Defendant Strozier was dismissed as a defendant in this action. At the close of discovery, Defendants filed the instant motions for summary judgment and motions to exclude the expert testimony of Dr. Robert Greifinger and Dr. Michael McGinnis. B. Facts In setting forth the facts, this court resolves all issues of material fact in favor of the plaintiff, and then, under that version of the facts, determines the legal question of whether various defendants are entitled to judgment as a matter of law. McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir.2004) (citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir.2003)). Plaintiff was arrested by City of New-nan police on February 21, 2001, and booked into the Coweta County Jail. At the time of his incarceration, Plaintiff was HIV positive; he had been HIV positive for approximately six years. Upon his incarceration Plaintiff was asked a series of medical questions as part of the booking process in order to identify any existing medical needs. At that time he did not inform jail personnel that he was HIV positive. On February 22, 2001, Plaintiff completed a request for medical services complaining that he had “the flu real bad,” that he could not breathe, and that he had a “really bad toothache.” The next day he was seen by Defendant Jennie Adcock, the head nurse and infirmary supervisor. He had a temperature of 102.5 degrees, dry scaly flushed skin, yellow drainage from his nose, a dry cough, and a red throat. Defendant Jennie Adcock called Defendant Burnett, the jail physician, who prescribed Bactrim (an antibiotic), Robitussin, Tylenol, and Chlor-Trimeton (an antihistamine and decongestant). Plaintiff took this medication from February 23 to February 27. On February 27, the medication was discontinued due to an “allergic reaction.” On March 8, Defendant Burnett was at the jail on one of her regular clinic days. It was Defendant Burnett’s custom to be at the jail for four hours one day a week. At all other times she was on call and able to be reached by jail personnel. Defendant Jennie Adcock saw Plaintiff on March 8 and reported to Defendant Burnett that Plaintiffs temperature was 99.2 degrees and that he still had a non-productive cough. Without examining Plaintiff, Defendant Burnett prescribed a different antibiotic, Amoxil. On March 18, Plaintiff prepared a request for medical services complaining of “Himrods” [hemorrhoids], and that he could not use the bathroom. He was scheduled to see Defendant Burnett on her next clinical day, March 22. On March 22, Defendant Burnett personally examined Plaintiff for the first time. Defendant Burnett noted that Plaintiff had small patches of “macular” rash on his arms. As a result of this visit she noted “cold symptoms resolving.” She prescribed Anusol for the hemorrhoids. On April 15, Plaintiff prepared a request for medical services stating, “I have a real bad cold, it never went away. My hole (sic) body is sore and I break out in sweat. I can’t eat please help me.” Defendant Jennie Adcock scheduled him to see Dr. Burnett. Four days later, on April 19, Plaintiff was examined by Defendant Burnett. On April 19, Plaintiff had a fever of 102.9, a rapid pulse, a slightly yellow productive cough (which had started on April 12). Defendant Burnett infused Plaintiff with one liter of I.V. fluids, prescribed Biaxin (an antibiotic) and Tylenol, and ordered a recheck on the following Tuesday, April 24. Further, Defendant Burnett ordered Plaintiff to be sent to the hospital for a chest x-ray and lab work. The x-ray taken on April 19 indicated pneumonia, and the lab work revealed anemia. Plaintiffs symptoms associated with this pneumonia abated within forty-eight hours of his being placed on antibiotics. Plaintiff Ex. 30. Defendant Burnett planned to have another set of x-rays taken in thirty days, the time after a patient starts taking antibiotics that, in her medical opinion, it could take for an x-ray to show clear lungs. On April 26, a nurse at the jail, Nurse Adams, asked Plaintiff whether he had HIV. Plaintiff admitted that he had been diagnosed as HIV positive in 1995. The same day the information reached Dr. Burnett. Dr. Burnett immediately contacted Positive Response, an organization that evaluates and treats HIV positive patients, and scheduled Plaintiff to have a HIV evaluation on May 30, the first available opening. Defendant Burnett also examined Plaintiff and found that the symptoms of pneumonia had cleared. On May 4, Plaintiff complained of headaches, lack of appetite, high blood pressure, and an oral thrush, a fungal infection of the mouth and gastrointestinal tract. At this time, Defendant Burnett prescribed a specialized diet and Zantac for the lack of appetite and Diflucan for the oral thrush. She also asked the jail nurses to inquire whether Plaintiff could be seen by Positive Response on an earlier date. They did so, but Defendant Burnett was informed that no earlier appointment was available. On May 5, Plaintiffs condition worsened. On May 6, Plaintiff had a fever of 102.9 and Defendant Burnett immediately sent Plaintiff to the emergency room. Plaintiff received a chest x-ray. The hospital radiologist noted improvement in the lung infiltrate with “somewhat of a cavitated appearance” and suggested a continued follow-up examination. The same day, Dr. Morgan, the emergency room physician who had examined Plaintiff, noted that Plaintiff had a continued, non-productive cough and a scaly erythematous rash on his face. He noted also that Plaintiffs x-ray showed “persistent scarring or infiltrate in the left upper lobe” of the lung. In the section of his notes labeled “Plan,” Dr. Morgan stated: The patient was rehydrated with one liter of normal saline in the Department. He will receive [an antibiotic] in the Department. Discussed with the jail nurse. She will arrange a follow up with the jail physician. They will consider a follow up with a pulmonologist. He has an appointment with an HIV clinic in two weeks. We will continue Diflucan [for oral thrush]. Antibiotic selection by jail physician tomorrow. Plaintiff Ex. 21. On May 10, Defendant Burnett examined Plaintiff. She noted that he “feels much better” and his oxygen saturation was good. She checked the x-ray report from the hospital emergency room and noted the indication on the radiologist’s report that the infiltrate was improving. Despite all these positive signs of improvement, Defendant Burnett ordered another chest x-ray to be taken the following day. She examined the third x-ray on May 16 and noted that “there has been no significant interval change of the left upper lobe cavitated lesion.” On May 17, Defendant Burnett noted on Plaintiffs chart that the May 11 chest x-ray showed a cavitary lesion that was the same size as seen on the x-ray of May 6. Yet another x-ray was taken that morning, May 17, and that x-ray gave some indication that the cavity lesion was decreasing. However, because the Patient was HIV positive with a possibly low T-cell count, Defendant Burnett referred Plaintiff to Dr. Patel, a pulmonologist. The same day, May 17, Plaintiff was hospitalized at Defendant Emory because the cavitated appearance on the x-ray raised the prospect of tuberculosis. During this hospitalization, hospital doctors performed a bronchoscopy and lung biopsy to investigate the cavitary lesion. Tests taken while Plaintiff was hospitalized showed that Plaintiff did not have tuberculosis. On May 21, Plaintiff was discharged from the hospital and sent back to the jail. Defendant Burnett testified that she was informed that when Plaintiff had been discharged from the hospital, Plaintiff had told the nurses at the hospital and the detention officer that he would be returning to the hospital because it was comfortable there and he had his own television and he liked the bed. After the lung biopsy of May 17, samples of Plaintiffs lung were sent from Defendant Emory to be analyzed at Defendant IRL’s laboratory. Susan Denford, a technologist for Defendant IRL, noted that two specimens had been taken from Plaintiffs lungs and that both had grown a mixture of bacteria and fungus. In order to isolate and identify the fungus, she prepared a subculture of the fungus only. On May 22 she ran tests on the fungus and found that it was not candida albicans. The information was placed by Defendant Emory on the computer Meditech database which stated that the culture had been identified as a yeast, but not candida albicans. This information was available to Defendant Burnett at a computer terminal at Defendant Emory. Defendant Burnett checked with Dr. Patel, the pulmonologist, regarding Plaintiffs lab reports, but it is unclear what information she received. There is no indication in the record that she was given any new information concerning the patient. She examined Plaintiff on May 24, her next regular visit to the jail, and recorded that Plaintiff was “doing well.” She was not aware of the May 22 lab finding of a pulmonary yeast infection. On May 29, Plaintiff complained of having headaches and vomiting three times since the night of May 28. He did not complain of any respiratory distress. He was placed on “med-watch.” When a person is placed on med-watch, the person is placed in a different part of the jail, the booking area, where his condition can be continually monitored. Plaintiffs symptoms were relayed to Defendant Burnett, who prescribed Phenergan for the vomiting and Tylenol for the pain. On May 30, Plaintiff went to his scheduled appointment at Positive Response. As a result of this visit Plaintiff was placed on HIV medications. On her next regular visit, May 31, Defendant Burnett did not examine Plaintiff. In the afternoon of May 31, after Defendant Burnett had left the jail, Nurse Taylor noted that Plaintiffs blood pressure was still elevated, that he was dizzy, and that the pulse oximeter showed a decrease in blood oxygenation. However, at this time the chart indicates that Plaintiffs temperature was normal and that his lungs were clear. Nevertheless, the nurses placed Plaintiff back on medwatch. A call was made to Defendant Burnett. Defendant Burnett informed the nurses to keep observing Plaintiff. Between May 31 and June 7, Plaintiff was observed in the booking area. On medwatch, the nurses take vital signs more often than usual and keep a closer eye on the patients. On June 2, the nurses who were checking on Plaintiff noted that he would “not get up from the mat.” On June 3, when checking on Plaintiff, Nurse Adams took his vital signs and noted that his “skin turgor” was good, suggesting that Plaintiff appeared to be hydrated. On June 4, Nurse Adams noted that Plaintiff would not come to the door to take medication, was urinating on the floor, and was cursing and abusive to the staff. The same day Defendant Jennie Adcock also observed Plaintiff to be just laying on the mat. Defendant Jennie Ad-cock indicated in her deposition that it was not the norm for Plaintiff to urinate on himself or be abusive to the staff. On May 5, Nurse Adams noted that Plaintiff took his medication in the morning. On the mornings of May 6 and 7, Nurse Adams noted that Plaintiff did not take his medication. Throughout this period the nurses observing Plaintiff reported to Defendant Burnett that Plaintiff was intermittently cursing, intermittently refusing medicines and intermittently urinating on himself. Jail personnel noted that all these actions seemed to occur when it appeared that Plaintiff thought he was being watched. There is no indication in the record that Plaintiff complained of any pain during this time. Defendant Burnett concluded that Plaintiff was faking in hopes of being placed back in the hospital. Plaintiff was placed in the infirmary on the afternoon of June 6. Defendant Burnett next examined Plaintiff on June 7 during her regular visit. She noted that Plaintiff had a personality change, with fluctuating personal hygiene, but that he continued to eat and drink and that his vital signs were stable, his pupils reacted to light, and that he was able to pull on her arm with strength despite stating he was without strength. She ordered a head CAT scan for toxoplasmosis, a complete metabolic profile, and a CBC (compíete blood count). Moreover, she ordered fungal cultures in the form of a blood culture and urinalysis. In her notes Defendant Burnett stated: adverse reaction to dapsone [HIV medication] is most likely diagnosis as have ruled out toxo and other CNS lesions, labs essentially normal. Push fluids and observe. Observed lying flat moving arm to move, gets ice into mouth without dropping it. I also ordered I.V., half normal saline at 125 an hour from one liter and then discontinue all of his medications. On June 8, Defendant Burnett called the infirmary to check on Plaintiff and was told that he complained of being blind. She directed that Plaintiff be sent to the hospital. In her report dated June 8, Defendant Burnett listed the following symptoms: altered mental status, some incontinence, visual changes, headache that was intermittent, and vision problems. She spoke with Dr. Rosenstock, an infectious disease specialist, and upon his recommendation, she inquired into the lab reports resulting from tests and procedures performed during Plaintiffs May 17 — 21 hospitalization. She learned that the lab work had identified the fungus culture as a yeast, not candida albicans. On the consultation with Dr. Rosenstock, Defendant Burnett requested that Defendant IRL test the fungus culture to identify the yeast. It turned out to be positive cryptococcus. A lumbar puncture indicated that Plaintiff was suffering from cryptococeal meningitis. As a result of the cryptococcus meningitis, Plaintiff had lost his vision. C. Contentions In his complaint, Plaintiff contends that Defendants Georgia, Coweta, and all individual defendants are liable for violations of his Fourteenth Amendment rights due to them deliberate indifference to a serious medical need, violations of the Americans with Disabilities Act and the Rehabilitation Act of 1973, and for abuse under the Georgia Constitution. Further, Plaintiff contends that Defendant Yeager is liable for failure to provide medical services under O.C.G.A. § 42^1-4 and that Defendant Burnett is liable for medical malpractice. Finally, Plaintiff contends that Defendants IRL and Emory are liable for failing to perform their duty to perform laboratory work with the requisite degree of care. Three different groups of defendants, (1) Defendants Coweta, Yeager, Blake Adcock and Jennie Adcock, (2) Defendants IRL and Emory, and (3) Defendant Burnett, contend that Dr. Greifinger’s expert testimony should be excluded pursuant to Fed. R.Evid. 702. Defendants IRL and Emory also seek to exclude the expert testimony of Michael McGinnis, Ph.D., pursuant to Fed.R.Evid. 702. Moreover, Defendant Georgia moved for summary judgment claiming that it was not liable for Rehabilitation Act violations stating that it was not responsible for the action of Defendant Yeager. Defendants Yeager, Blake Adcock and Jennie Adcock contend that they are entitled to summary judgment on Plaintiffs Fourteenth Amendment claim. Defendant Coweta contends that it is entitled to summary judgment on Plaintiffs ADA and Rehabilitation Act claims and his Fourteenth Amendment claims. Defendant Burnett avers that she is entitled to summary judgment on Plaintiffs deliberate indifference claim. Defendants IRL and Emory contend that they are entitled to summary judgment on Plaintiffs state law negligence claims. II. Discussion A. Expert Testimony Rule 702 of the Federal Rules of Evidence provides that “[i]f scientific, technical, or other specialized knowledge will assist a trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” In the seminal case on the matter, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that Rule 702 imposes on judges a special gate-keeping role, and the Court instructed them to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 589, 113 S.Ct. 2786. The Supreme Court noted that Rule 702 admits only “scientific knowledge,” and not speculation or subjective belief. Id. at 590, 113 S.Ct. 2786. “The proponent of expert testimony always bears the burden to show that his expert is qualified to testify competently regarding the matters he intendfed] to address; [] the methodology by which the expert reach[ed] his conclusions is sufficiently reliable; and [] the testimony assists the trier of fact.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) Under Daubert’s reliability prong, the Supreme Court listed four factors that courts should consider when determining whether testimony is reliable: (1) whether the theory or technique can be tested; ( 2) whether it has been subject to peer review; (3) whether the technique has a known or potential rate of error; and (4) whether the theory has attained general acceptance in the relevant community. Id. at 593-94, 113 S.Ct. 2786; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). These factors are not exhaustive but serve instead as a starting point for the court’s analysis. Daubert, 509 U.S. at 593, 113 S.Ct. 2786; Allison v. McGhan Medical Corp., 184 F.3d 1300, 1312 (11th Cir.1999). When engaging in the reliability analysis, courts must be careful to focus on the expert’s principles and methodology rather than the scientific conclusions that they generate. Daubert, 509 U.S. at 595, 113 S.Ct. 2786. The court notes that “presenting a summary of a proffered expert’s testimony in the form of conclusory statements devoid of factual or analytical support is simply not enough” to carry the proponent’s burden. Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, 402 F.3d 1092, 1113 (11th Cir.2005). Moreover, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” Id. at 1111 (internal quotations omitted). An expert’s unexplained assurance that his or her opinions rely on accepted principles fares no better. McClain v. Metabolife International, Inc., 401 F.3d 1233, 1244 (11th Cir.2005). When a witness relies “solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Frazier, 387 F.3d at 1261. An expert’s qualification and experience alone are not sufficient to render his opinions reliable. Id. Under the second prong of the Daubert analysis, the proposed expert testimony also must be relevant. In order to satisfy this requirement, a court must ensure that the “proposed expert testimony is ‘relevant to the task at hand,’ ..., i.e., that it logically advances a material aspect of the proposing party’s case.” Id. at 591, 113 S.Ct. 2786. The Court has described this prong as an issue of “fit.” Id. The relevance prong is not satisfied where otherwise acceptable evidence is introduced for the wrong purposes. Id. Likewise, the relevance prong is not satisfied where the proffered testimony does not assist the trier of fact. See Fed.R.Evid. 702. Further, “[p]roffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.” U.S. v. Frazier, 387 F.3d 1244, 1262-63 (11th Cir.2004) (en-banc). Falsifiability is an important issue in determining the relevance of opinions offered by an expert. As stated in Daubert: a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. “Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” In sum, expert testimony may be admitted into evidence if (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated by Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1998). Finally, the Eleventh Circuit stresses “that the burden of laying the proper foundation for the admission of expert testimony rests with its proponent.” Cook, 402 F.3d at 1113. Accordingly, here the burden rests on Plaintiff. It is within the court’s discretion whether or not to hold a Daubert hearing to help decide issues concerning an expert’s adequacy to testify. “Daubert hearings are not required, but may be helpful in complicated cases involving multiple expert witnesses.” Id. As neither Plaintiff nor Defendants has requested to be heard concerning the experts, the court declines to hold a Daubert hearing. 1. Dr. Greifinger Three different groups of Defendants have filed motions to exclude the expert testimony of Plaintiffs expert, Dr. Greifinger: (1) Defendants Coweta, Yeager, Blake Adcock and Jennie Adcock, (2) Defendants IRL and Emory, and (3) Defendant Burnett. They set forth three arguments as to why Dr. Greifinger’s expert testimony should be excluded: (1) Dr. Greifinger is not qualified to offer expert testimony in this case; (2) Dr. Greifinger’s opinions are not reliable; and (3) Dr. Greifinger’s opinions are not relevant and go beyond the scope of permitted expert testimony pursuant to Rule 702. Meanwhile, in support of Dr. Greifinger’s expert testimony, Plaintiff contends: the overall medical-legal issue is not one of internal medicine nor of infectious disease specialty. The medical-legal issues are issues created by the unique setting of correctional health care. Specifically whether the ... [Defendants’ action] ... demonstrates a deliberate indifference to serious medical needs. As an expert in the delivery of care in a corrections setting Dr. Griefinger (sic) is eminently qualified as by his curriculum vitae. Pltf. Resp. to Def. Burnett’s motion to exclude at 5. Moreover, Plaintiff states that Dr. Greifinger’s testimony is based on reliable principles of corrections health care. Finally, Plaintiff contends that Dr. Greifinger’s testimony will assist a jury. a. Initial matters Defendants IRL, Emory, and Burnett contend that Dr. Greifinger is not qualified to testify with regard to Plaintiffs state law claims because of new Georgia legislation. The Eleventh Circuit has held that when evaluating expert testimony in Georgia state medical malpractice claims brought in federal court pursuant to supplemental jurisdiction, the matter is substantive and subject to state law. McDowell, 392 F.3d at 1294-95 (agreeing with Legg v. Chopra, 286 F.3d 286, 290 (6th Cir.2002)) (“state witness competency rules are often intimately intertwined with a state substantive rule. This is especially true with medical malpractice statutes, because expert testimony is usually required to establish the standard of care.”). The court agreed with Legg when it mandated that “if a witness is deemed competent to testify to the substantive issue in the case, such as the standard of care, his or her testimony should then be screened by Rule 702 to determine if it is otherwise admissible expert testimony.” McDowell, 392 F.3d at 1295 (citing Legg, 286 F.3d at 292) (emphasis added). Defendants contend that O.C.G.A. § 24-9-67.1 has changed the standards for competency of expert witnesses in Georgia. The court agrees. In a relevant portion this statute states: [I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert: (1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and (2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in: (A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or (B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and (D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician’s assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician’s assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician. O.C.G.A. § 24-9-67.1(c). Defendant contends that this statute prevents Dr. Greifinger from testifying as to matters of internal medicine, infectious disease, or laboratory procedures because he has not practiced or taught these matters for three of the past five years. The court finds this statute must be applied and concludes that Dr. Greifinger is not qualified to speak to such matters (internal medicine, infectious disease, or laboratory procedures) with regard to Plaintiffs state law claims. Plaintiff raises two arguments against the application of the statute to the state malpractice claims in this case. First, he contends that the statute is not retroactive and thus does not apply to this case. The court disagrees. Georgia Laws 2005, Act I § 15, provides: (a) This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval, (b) Code Sections 51-12-31 and 51-12-33, as amended by this Act, and Code Sections 51-1-29.5, 51-2-5.1, and 51-13-1, as enacted by this Act, shall apply only with respect to causes of action arising on or after the effective date of this Act, and any prior causes of action shall continue to be governed by prior law. It is the intention of the General Assembly that all other provisions of this Act shall apply to causes of action pending on its effective date, unless such application would be unconstitutional. The court notes that O.C.G.A. § 24-9-67.1 was signed into law by the Governor effective February 16, 2005. Next, Plaintiff contends that O.C.G.A. § 24-9-67.1 does not apply in a federal court and relies on the following language of the statute: (f) It is the intent of the legislature that, in all civil cases, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases. The court finds Plaintiffs argument without merit. The Eleventh Circuit stressed in McDowell that when determining the competency of an expert witness in state medical malpractice claims, federal courts first should apply the competency standard under state law. Because this state statute goes directly to the state competency standard, the court first will analyze Plaintiffs state law claims as O.C.G.A. § 24-9-67.1 requires. b. Dr. Greifinger’s Qualifications The court finds that Dr. Greifinger is qualified as an expert to discuss matters of correctional health. Dr. Greifinger has practiced in the field of correctional medicine for the past sixteen years. Greifinger Report at 1. From 1987 to 1989 he managed medical care at Rikers Island. Id. From 1989 to 1995 he served as Deputy Commissioner/Chief Medical Officer for the New York State Department of Correctional Services. Id. From 1995 to the present he has been engaged as a consultant in the design, management, and quality improvement of correctional health care systems. Id. Such qualifications render Dr. Greifinger as a qualified expert on matters of correctional health. With respect to Plaintiffs state law claims, it would be inappropriate for Dr. Greifinger to testify as to any matter outside correctional health care. There is no evidence that he has practiced in any field except correctional health care for three of the past five years. Therefore, under O.C.G.A. § 24-9-67.1, he is not competent to testify as to other matters with regard to Plaintiffs state law claims. Specifically, he is not competent to testify as to the standard of care in the fields of internal medicine, infectious disease, or laboratory procedures with regard to Plaintiffs state law claims. Moreover, applying a Rule 702 analysis, while Dr. Greifinger is an expert on matters of correctional health, he is not an expert in internal medicine, infectious diseases, or proper laboratory procedure. Dr. Greifinger is board certified in pediatrics. Greifinger Depo. at 188. Moreover, he has not provided hands-on medical treatment to any inmates since 1985. Id. Dr. Greifinger has never treated a patient with cryptococcus meningitis. Id. at 214. Therefore, the court concludes that under Rule 702, it would be inappropriate for Dr. Greifinger to testify as an expert with respect to any claim as to matters in this case except as to aspects of correctional health. c. The reliability of Dr. Greifinger’s expert testimony Defendants contend that Dr. Greifinger’s testimony is not reliable. Defendants contend that Plaintiff and Dr. Greifinger have offered no support as to the reliability for Dr. Greifinger’s statements concerning the laboratories. Moreover, Defendants contend that Dr. Greifinger’s theory that earlier treatment of cryptococcal meningitis would have prevented Plaintiffs blindness (1) has not be tested, (2) has not been subject to peer review, (3) has not been assigned a potential rate of error, and (4) is not generally accepted. Burnett Mot. to Exclude at 14. Defendants point to specific portions of Dr. Greifinger’s analysis of Plaintiffs condition to show that his opinions were unreliable. As to Dr. Greifinger’s findings that the Defendants’ actions fell below the standard of care, Defendants contend that Dr. Greifinger makes such conclusions without any discernable methodology, reliable data, or generally accepted standards. Coweta, et al. Mot. to Exclude at 9. Plaintiff seeks to rebut these contentions. With regard to the reliability of Dr. Greifinger’s conclusions regarding cryptococcal meningitis, Plaintiff contends that the Defendants’ own expert’s testimony supports Dr. Greifinger’s statements. Plaintiff states that all of Defendants’ experts agree that earlier treatment would have prevented blindness. Therefore, Plaintiff contends that it is inappropriate and specious to attack Dr. Greifinger’s testimony as unreliable. With regard to Dr. Greifinger’s comments about the standards of health care in a correctional facility, Plaintiff contends that Dr. Greifinger based his expert testimony on: his own education[,] training and experience, his participation with other correctional health care professionals in writing, speaking and professional organizations, his observations as court appointed monitor for jails across the country, his participation as a member of the National Commission on Correctional Health Care in promulgating and promoting national standards and, as authority, the actual adopted and written standards for correctional health care published by the National Commission on Correctional Healthcare. Pltf. Resp. to Burnett Mot. to Exclude at 8-9. The court is unable to find that the opinions set forth in Dr. Greifinger’s expert report are sufficiently reliable. With regard to Dr. Greifinger’s statements concerning the standard of care for laboratories, Plaintiff has offered no argument as to why his statements are reliable. Moreover, in his expert report, Dr. Greifinger himself offered no support for his statements concerning the laboratories. With regard to his statements about the treatment of cryptococcal meningitis, Dr. Greifinger provides no basis for his conclusions. While Plaintiff contends that Defendants’ own experts support Dr. Greifinger’s findings, the issue before the court is what Dr. Greifinger based his conclusions upon. Dr. Greifinger has cited no support for his conclusions save his experience. However, Dr. Greifinger has never seen a patient with crypotoeoccal meningitis. Greifinger Depo. at 214-15. Therefore, Dr. Greifinger’s theory that earlier treatment of cryptococcal meningitis would have prevented Plaintiffs blindness is without support and unreliable. With regard to his statements concerning standards for correctional health care, Dr. Greifinger provides little quantifiable support for his conclusions. In his expert report, except for (i) the third sentence which provides “[w]ith my experience in correctional health care for more than 16 years, my opinions are to a reasonable degree of medical certainty and based on standards of care for correctional facilities such as the Coweta County Jail,” and (ii) a general listing of his background experience in health care, Dr. Greifinger makes no reference to any specific experience or material upon which he relied in making his conclusions. In fourteen of his sixteen conclusions, Dr. Greifinger states that the actions of various Defendants fall below the standards of correctional health care and demonstrate deliberate indifference to Mr. Dukes’ serious medical needs. However, Dr. Greifinger does not specify what experiences or what standards he relied upon in making any of these determinations. In order to find Dr. Greifinger’s opinion testimony reliable and connected to scientific data, this court would need to take a leap of faith and rely on Dr. Greifinger’s ipse dixit and assurance that his testimony is based on nationally accepted standards. Reliance on naked assurances of the purported expert is exactly what the Eleventh Circuit in Cook and McClain warned against Accepting Dr. Greifinger’s experience alone as evidence of the reliability of his statements is tantamount to disregarding entirely the reliability prong of the Daubert analysis. d. The relevance of Dr. Greifinger’s expert testimony With regard to the relevance of Dr. Greifinger’s expert testimony, Plaintiff contends: [J]urors have no first hand knowledge of what goes on in jails day to day. Dr. Greifinger’s testimony is necessary to supply that gap in knowledge. In order for a jury to determine whether defendants’ many failures or decisions not to act, the jury must receive some “education” regarding the meaning of facts, how jail officials could be expected to respond in the face of those facts, and how the unique restrictions and requirements in a jail setting alter or affect how these officers should [act]. Pltf. Resp. to Coweta, et al. Mot. to Exclude at 6-7. Plaintiff states, “Dr. Griefinger (sic) is the only expert offered who has knowledge[,] experience and training to educate jurors on what barriers, limitations and special circumstances the correctional setting of this medical case presents .... ” Pltf. Resp. to Burnett Mot. to Exclude at 7. However, this court finds that rather than commenting on how Defendants should have acted or what “barriers, limitations and special circumstances the correctional setting of this medical case presents,” Dr. Greifinger merely summarizes Defendants’ actions with regard to the Plaintiff and concludes that such actions fall below the standards of correctional health care and demonstrate deliberate indifference to Plaintiffs serious medical needs. Whether or not Defendants were deliberately indifferent is exactly what Plaintiff must prove at trial. The conclusions that Dr. Greifinger asserts are no different from that which Plaintiffs lawyers will argue during their closing statements. His stamp of approval on the Plaintiffs contentions does nothing to advance a material aspect of Plaintiffs case. Because Dr. Greifinger’s expert testimony contributes nothing to assist the jury, the court finds that it is not relevant and should be excluded under Rule 702. Accordingly, because the court finds that Dr. Greifinger’s expert testimony is neither reliable nor relevant under the Daubert analysis, the court concludes that the testimony should be excluded under Rule 702. Therefore, the court GRANTS the motion of Defendants Coweta, Yeager, Major Blake Adcock, and Jennie Adcock to exclude expert testimony of Dr. Robert Greifinger pursuant to Federal Rule of Evidence 702[146] and the motion in limine of Defendants Miriam J. Burnett and MJB Health Services, Inc., to exclude the testimony of Robert Greifinger, M.D. [153]. Further, the court GRANTS IN PART the final motion of Defendants Integrated Regional Laboratories, E.C.H.A. Peachtree, L.L.C., and E.C.H.A., L.L.C., to exclude testimony of Robert Greifinger, M.D., and Michael McGinnis, Ph.D. [151]. 2. Michael McGinnis, PhJD. Defendants IRL and Emory also move the court to exclude the expert testimony of Michael McGinnis, Ph.D. Dr. McGinnis gives three basic opinions concerning the Defendant Laboratories’ actions. First, it is his opinion that the cryptococcus neoformans could have been identified sooner than it was by the laboratories. Next, he states Defendant IRL should have tested the sample for the cryptococcus neoformans and that the failure to do so was a violation of the standard of care. Finally, Dr. McGinnis opines that Defendant Emory’s reporting procedures were below the standard of care. Dr. McGinnis is currently the Associate Director of Clinical Microbiology for the University of Texas Medical Branch. In that role, he is in charge of the diagnostic mycology laboratory. He has been employed in this particular capacity since 2003. McGinnis CV at 1. Dr. McGinnis has been employed by the University of Texas Medical Branch, except for one year, since 1989. a. Dr. McGinnis’s Qualifications Defendant contends that as Dr. McGinnis works in a large hospital laboratory, he is not qualified to speak towards the practices employed in a reference laboratory. Contrary to Defendants’ argument, the court does not find that there is a significant difference between the work done at Dr. McGinnis’s laboratory and reference laboratories. Both facilities take samples from patients and analyze them for different pathogens. Further, Dr. McGinnis’s laboratory sometimes performs identification of samples received from outside sources. However, the court finds that on the state of this record, Dr. McGinnis is not qualified to speak about the growth rate of cryptococcus neoformans. In his deposition testimony, Dr. McGinnis has not shown that he has personal knowledge about the growth rates of cryptococci. He never even cites any specific occasion during which he worked with or identified the yeast. He states that he has never run any tests to determine the actual growth rate of the yeast. Finally, he notes that he does not know of any studies that have been conducted to determine the growth rate of crytococcus. His only knowledge regarding the growth of this yeast seems to come from “chit-chat” with other mycologists. He did not reveal in his deposition and has not otherwise informed the court as to the amount of contact these other scientists have had with cryptococcus neoformans. Thus, while he actually might be very familiar with cryptococcus neoformans, the record does not reflect any such personal knowledge. Moreover, Dr. McGinnis states that he works in a supervisory capacity. He is not a technician involved in the identification of yeast. Rather, he oversees the technicians who identify samples. While, Dr. McGinnis on occasion may have worked as the actual technician identifying yeast during three of the past five years, the record does not reflect any such work. Therefore, Plaintiff, as the party proffering Dr. McGinnis’s opinions, has not met his burden of satisfying the requirements of O.C.G.A. § 24-9-67.1 by showing that Dr. McGinnis has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.” b. Reliability and Relevance of Dr. McGinnis’s expert testimony Even if the court allowed the Plaintiff to proffer more evidence to show that Dr. McGinnis is qualified to speak to matters concerning a technician’s identification of the yeast cryptococcus neoformans, the court finds his opinions do not satisfy the reliability or relevance prongs of Daubert. It appears to the court that Dr. McGinnis did not have sufficient data and information in order to form reliable opinions regarding Defendants’ actions. He does not seem to know what actually was being done at the laboratory. McGinnis Depo. at 115, 125, 134-36. He states that he does not know how the yeast was transmitted. He does not know the conditions under which the yeast was maintained. He does not know how much of the yeast was present at any given time. He states that he does not know the temperature of incubation, admittedly a factor that would affect a specimen’s growth rate. Id. at 70. Because of an absence of work cards and work sheets, he seems not to have sufficient information about what was going on in the lab in order to form a valid opinion. Id. at 115, 125, 134-36. He admits that he does not know whether the sample was checked regularly. Id. at 139. Finally, he admits that it might not have been possible to identify the yeast before June 8. Id. at 140. Further, his opinions are based on an assumption that in more than fifty percent of the cases there would be enough sample to test for cryptococcus neoformans, on May 22. Id. at 127. However, even this assumption is based on suppositions concerning the conditions in the laboratory. Id. at 70. Dr. McGinnis admits it is possible that on May 22 there was no cryptococcus present or that there was not enough yeast present to run a test for cryptococcus neoformans. Id. at 111, 116. He also states that it would be pure speculation to speak about the amount of growth of the specimen on May 22. Id. at 144, 145. He testified that the yeast identified on June 8 may not have been the same yeast as the one that may have been present on May 22. Id. at 115. While Plaintiff may be able to show that Dr. McGinnis is qualified to testify as to the proper standard of care and what actions should have been taken to meet this standard of care, his opinions still do not satisfy Daubert. Dr. McGinnis is working on insufficient data to make his conclusions. He does not know the conditions of the samples or the procedures. Further, his conclusions on the date on which a possible identification of cryptococcus neoformans could be made is based upon many assumptions and suppositions, the truth of which he had not verified and which are not supported in the record. Finally, Dr. McGinnis’s statement that reports should have been made and transmitted also rests on the assumption that there was enough yeast present to identify the cryptococcus. Moreover, Dr. McGinnis has not even undertaken to discount other possibilities which might have accounted for the lack of growth, the failure to test the sample prior to June 8, or the failure to report the results. This failure to falsify possible factors shows Dr. McGinnis’s lack of methodology. Because of the lack of methodology, his conclusions will not assist the trier of fact and are therefore not relevant. For all the above-stated reasons, the reliability and relevance of Dr. McGinnis’s testimony have not been demonstrated to the satisfaction of the court. Because Plaintiff has not met his burden of showing the proffered expert’s qualifications and because the expert has not offered a reliable or relevant opinion, the court concludes that his testimony should be excluded under Daubert and Rule 702. Therefore, the court GRANTS IN PART the final motion of Defendants Integrated Regional Laboratories, E.C.H.A. Peachtree, L.L.C., and E.C.H.A., L.L.C., to exclude testimony of Robert Greifinger, M.D., and Michael McGinnis, Ph.D. [151]. B. State Actors v. County Actors— Eleventh Amendment Immunity Defendants Yeager, Blake Adcock, and Jennie Adcock contend that the Eleventh Amendment’s guarantee of sovereign immunity precludes Plaintiffs claims against them. The Eleventh Amendment to the United States Constitution provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. amend. XI. While the language of the Eleventh Amendment would seem to bar only those suits brought against a state either by citizens of another state or by citizens of a foreign state, the Supreme Court has interpreted the Eleventh Amendment to bar suits against a state brought by its own citizens. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Furthermore, an entity that is considered an “arm of the state” is also immune from suit. Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir.2003). On the issue of whether a sheriff is a state or county actor for purposes of a section 1983 action, the Supreme Court has stated, “the question is not whether [the sheriff] acts for [the state] or [the county] in some categorical, ‘all or nothing’ manner,” but rather, whether the sheriff is acting for the state “in a particular area, or on a particular issue.” McMillian v. Monroe County, 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). Therefore, whether a defendant is an “arm of the state” must be assessed in light of the particular function in which the defendant was engaged when taking the action out of which liability arose. Manders, 338 F.3d at 1308. To determine if a sheriff is an “arm of the state” for Eleventh Amendment purposes while carrying out a particular function, this court should consider four factors: “(1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity.” Id. at 1309. In order to fully understand the factors, the court must examine Georgia law and the relationship between the different actors, most specifically between Sheriff Yeager, the State, and Coweta County. Id. In Manders, the court found that the defendant, a sheriff in Clinch County, was an arm of the state and wore a “state hat” in prescribing use of force policy. The Eleventh Circuit in Manders, however, noted that “[t]his is not a case of feeding, clothing or providing medical care to inmates which necessarily occur within the jail.” Id. at 1319. Later, the Manders court noted that “Georgia counties have obligations involving the jail structure and inmates’ food, clothing, and medical necessities” and that “such duties involve wholly separate and distinct matters from the sheriffs force policy at the jail and his training and disciplining of deputies in that regard.” Id. at 1322 (emphasis added.) The Eleventh Circuit, when discussing, where the sheriff derives its funds, quoted O.C.G.A. § 42-5-2(a) which states, “it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any medical and hospital attention.” Id. at 1323. In a footnote discussing this statute, the Eleventh Circuit stated, “[w]e stress that this case does not involve medical care, which counties have a jails.” Id. n. 43; see also Epps v. Gwinnett County, 231 Ga.App. 664, 670, 499 S.E.2d 657 (1998); Cherokee County v. North Cobb Surgical Assocs., 221 Ga.App. 496, 499, 471 S.E.2d 561 (1996); Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga.App. 530, 531-32, 428 S.E.2d 374 (1993). In Purcell ex. rel. Estate of Morgan v. Toombs County, 400 F.3d 1313, 1325 (11th Cir.2005), an inmate’s mother sought to hold a sheriff and others responsible for failure to prevent an inmate-on-inmate attack which resulted in injury to her son. The Eleventh Circuit relied exclusively on the language in Manders which stated that “a sheriffs authority and duty to administer the jail in his jurisdiction flows from the State, not [the] County,” to support its finding that the sheriff functioned as an arm of the state, not the County, when promulgating policies and procedures governing condition of confinement at the County jail. Because neither Manders nor Purcell involved allegations regarding a sheriffs providing of medical necessities to inmates, the court will apply the four factors set forth in Manders to determine if a Georgia sheriff qualifies as an “arm of the state” when he does so. 1. How State Law Defines the Entity The first factor to be applied by this court is how the state law defines the entity. Because the Manders decision involved the relationship of a Georgia sheriff to the county and the state, the analysis for how the state law defines the office of the sheriff in this situation is almost identical to the Eleventh Circuit’s analysis in Manders. Therefore, the court will provide a brief synopsis of the relevant parts of that opinion. In Manders, the Eleventh Circuit noted: [T]he essential governmental nature of [a sheriffs office] is (a) to continue to perform his historical common law duties to enforce the law and preserve the peace on behalf of the sovereign State and (b) to perform specific statutory duties, directly assigned by the state, in law enforcement, in state courts, and in corrections. Most of those duties are an integral part of the State’s criminal justice system and are state functions. Manders, 338 F.3d at 1319. A sheriffs office is a “separate and independent office” from a county and its governing body. Id. “Counties delegate no powers or duties to the sheriff.” Id. “[The sheriff] and his deputies are not employees of [the] [c]ounty.” Id. Moreover, the Georgia Constitution precludes counties “from having any control of the sheriffs office.” Id. Because this case deals with the sheriffs function in maintaining a county jail, the court will analyze this particular function. The Georgia Legislature mandates that “[i]t shall be the duty of the sheriff ... [t]o take from the outgoing sheriff custody of the jail and the bodies of such persons as are confined therein” and to furnish inmates “medical aid, heat, and blankets, to be reimbursed if necessary from the county treasury.” Id. at 1315 (citing O.C.G.A. § 42-4-4(a)(1)-(2)). A sheriffs “authority and duty to administer the jail in his jurisdiction flows from the state, not the county.” Id. (relying on In re Irvin, 254 Ga. 251, 253, 328 S.E.2d 215 (1985) (“It is clear that the legislature has vested broad authority in the office of sheriff to administer the jails.”)). With regard to the jail, the court in Manders noted that it “is material that the State uses the county jail to incarcerate not only pretrial detainees charged with state offenses ... but also state offenders serving state sentences after conviction.” Id. Nevertheless, when the sheriff, functioning exclusively as a jailer, provides medical necessities to inmates, some Georgia provisions define him as providing county functions. Since 1863, the Georgia Code has provided that sheriffs are “Jailers of the counties.” Ga.Code § 331 (1863). Today, it provides that “sheriffs are jailers of the counties and have the authority to appoint other jailers, subject to the supervision of the county governing authority.” Ga.Code Ann. § 42-4-l(a) (1997). Moreover, it is counties that have the “physical custody” of inmates in their jails and are therefore bound to maintain them, as by furnishing “food, clothing, and any needed medical and hospital attention.” Id. § 42-5-2(a). Manders, 338 F.3d at 1334 (Barkett, J., dissenting) While the Manders court’s application of this factor weighed strongly in favor of a finding that the sheriff was an “arm of the state” in the function of developing a force policy, here, the first factor does not clearly lead to such a finding. With regard to a sheriffs function as a jailer providing medical necessities to inmates, the court finds that the first factor leans toward a finding that the sheriff is performing a county function. 2. Where the state law vests control The second factor to apply in determining if an actor is an “arm of the state” looks at where the state law vests control. As stated in Manders, the Governor retains significant control over sheriffs. Id. at 1321 (citing O.C.G.A. § 15-16-26 (“the Governor has broad investigation and suspension powers regarding any misconduct by a sheriff in the performance of any of his duties”)). “Specifically, the Governor may initiate an investigation of any suspected misconduct by any sheriff and may suspend the sheriff.” Id. Such an investigation is funded by the state. O.C.G.A. § 15-16-26(a). After such an investigation, “the Governor may suspend a sheriff for sixty days and extend that suspension for thirty additional days.” Id. (citing O.C.G.A. § 15 — 16—26(c)). The court in Manders concluded that this “disciplinary procedure constituted direct, substantial, and immediate state control over the sheriffs acts.” Id. However, at this point the analysis of the sheriffs functions diverges from the situation in Manders. Unlike the development of a force policy as discussed in Manders, it is the Georgia counties which have obligations “to maintain the inmate, furnish him with food, clothing, and any needed medical and hospital attention.” O.C.G.A. § 42-5-2(a). These functions are carried out through the sheriff. Further, O.C.G.A. § 15-12-71(c) and O.C.G.A. § 15-12-78 provide county governing authorities some oversight of a sheriffs operations at a jail through the investigative powers of grand juries which must inspect jails annually and make appropriate recommendations to the county commission. While the application of this factor arguably may lean toward a finding that the sheriff, even when providing medical necessities, acts as an “arm of the state,” the analysis is not nearly as clear as the sheriffs function addressed in Manders. Moreover, in applying this factor, even the majority in Manders recognized that “Georgia counties have obligations involving the jail structure and inmates’ food, clothing, and medical necessities.... ” Manders, 338 F.3d at 1322. 3. Funds O.C.G.A. § 42-5-2(a) provides: “it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention.” In Manders, the court found that this statute was not dispositive to the force policy under consideration. The court reached this conclusion with the following caveat: We stress that this case does not involve medical care, which counties have a statutory obligation to provide to inmates in county jails. O.C.G.A. § 42-5-2. S