United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge Janet F. King's Final Report and Recommendation  ("R&R") and Planitiff's pro se objections  to the Magistrate Judge's R&R.
On September 9, 2013, Plaintiff Christos James Stavropoulos ("Plaintiff"), incarcerated in the Cobb County Adult Detention Center in Marietta, Georgia, proceeding pro se , filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff brings this action against Wellstar Health Services and/or Medical Group ("Wellstar") for an alleged toe injury. On May 6, 2013, Plaintiff hurt his toe after falling from his top bunk. Plaintiff informed the officer on duty that his toe was bleeding, and the officer allowed Plaintiff to see a nurse for a band-aid. On May 9, 2013, Plaintiff received medical attention. On May 17, 2013, Plaintiff filed a grievance to prompt proper medical care for his toe, including x-rays and a cane.
On May 24, 2012, Plaintiff's toe was x-rayed. Plaintiff also received pain medication and was prescribed a soft shoe. One month later, his toe was x-rayed for the second time. On September 1, 2013, Plaintiff's pain medications were renewed. Plaintiff asserts that his toe healed incorrectly and that he still feels pain. As a result, Plaintiff asserts that he needs reconstructive toe surgery. Plaintiff seeks damages and compensation for care equal to what he would receive if not incarcerated.
On October 10, 2013, Magistrate Judge King issued her R&R recommending that this action be dismissed as frivolous pursuant to 28 U.S.C. § 1915A.
On October 16, 2013, Plaintiff filed his objections to the R&R. In his objections, Plaintiff appears to contest the Magistrate Judge's determination that the tardy diagnosis of his toe injury did not constitute a plausible Section 1983 claim.
A. Standard of Review on Magistrate Judge's R&R
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright , 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga. , 896 F.2d 507, 512 (11th Cir. 1990) (internal quotation marks omitted). Even though Plaintiff's "objections" to the R&R are doubtfully sufficiently specific, the Court conducts its de novo review of the findings and recommendations in the R&R. United States v. Slay , 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
The Court is required to conduct an initial screening of a prisoner complaint to determine whether the action is frivolous. 28 U.S.C. § 1915A(a). The Court must dismiss the Complaint if it is "frivolous, malicious, or fails to state a claim upon which relief may be granted." Id . § 1915A(b)(1). "A claim is frivolous if and only if it lacks an arguable basis either in law or in fact.'" Miller v. Donald , 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting Neitzke v. Williams , 490 U.S. 319, 327 (1989)). The standard for failure to state a claim under Section 1915A(b)(1) is the same that governs dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Cf. Wilkerson v. H&S, Inc. , 366 F.Appx. 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass , 112 F.3d 1483, 1490 (11th Cir. 1997)) (noting this rule in connection with similarly-worded 28 U.S.C. § 1915(e)(2)(B)).
Under this standard, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 129 S.Ct. at 1949 (citing Twombly , 550 U.S. at 556). Mere "labels and conclusions" are insufficient. Twombly , 550 U.S. at 555. When reviewing a complaint for frivolousness, a court must hold pro se pleadings to a less stringent standard than pleadings drafted by attorneys, and must construe pro se pleadings liberally. Miller , 541 F.3d at 1100.
The Magistrate Judge found that the claims against Wellstar are required to be dismissed because Plaintiff did not allege that a policy or custom established by Wellstar constituted deliberate indifference to his medical needs pursuant to the Eighth Amendment. See McDowell v. Brown , 392 F.3d 1238, 1289 (11th Cir. 2004) ("[T]o impose §1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that a policy or custom caused the ...