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Revere v. Zanders

United States District Court, S.D. Georgia, Dublin Division

March 31, 2015

JERMAINE R. REVERE, Plaintiff,
v.
SAM ZANDERS, Deputy Warden of Care & Treatment; MARIE YAWN, Medical Administrator; and DR. MURRAY CHENEY, Defendants.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BRIAN K. EPPS, Magistrate Judge.

Plaintiff, an inmate at Smith State Prison in Glennville, Georgia, who is proceeding pro se and in forma pauperis ("IFP"), commenced the above-captioned case pursuant to 42 U.S.C. § 1983 concerning events alleged to have occurred at Telfair State Prison ("TSP") in Helena, Georgia. The matter is presently before the Court because dismissed Defendant Dees, as well as current Defendants Zanders and Yawn, have filed a motion to dismiss. (Doc. no. 23.) For the reasons set forth below, the Court REPORTS and RECOMMENDS that the motion to dismiss be GRANTED and that this case proceed only as to the Eighth Amendment claim for deliberate indifference against Defendant Cheney.

I. BACKGROUND

In his amended complaint, Plaintiff named four Defendants: (1) Dianne Dees, Deputy Warden of Care and Treatment at TSP; (2) Sam Zanders, Deputy Warden of Care and Treatment at TSP; (3) Marie Yawn, a Medical Administrator at TSP; and (4) Murray Cheney, a doctor at TSP.[1] (See doc. no. 11, pp. 1, 4.) Because Plaintiff is proceeding IFP, the Court screened his amended complaint pursuant to 28 U.S.C. §§ 1915(e) and 1915A. By Order dated November 17, 2014, United States District Judge Dudley H. Bowen, Jr., dismissed Defendant Dees from the case. (Doc. no. 17.) The Court allowed Plaintiff to proceed with his claim against Defendants Zanders, Yawn, and Cheney for deliberate indifference to a serious medical need. (Doc. no. 13.) Defendant Cheney separately filed an answer (doc. no. 22), and the remaining Defendants filed the instant pre-answer motion to dismiss. With respect to the deliberate indifference claim, the amended complaint alleges the following facts.

On June 26, 2012, Plaintiff sustained an injury to his left hand and wrist that resulted in surgery to amputate two fingers and repair several deep lacerations. (Doc. no. 11, p. 5.) When Plaintiff arrived at TSP on July 19, 2012, he had a cast on his left arm and hand, and on July 30, he had the cast removed at a medical facility in Savannah, Georgia. (Id.) The doctor in Savannah put Plaintiff's left hand in a soft brace and told him orders for physical therapy and a follow up appointment would be sent to TSP. (Id. and Ex. 3.) On August 7, Defendant Cheney and a physical therapist came to Plaintiff's cell for a thirty minute session of exercises with Plaintiff, and Defendant Cheney explained Plaintiff would have two physical therapy sessions per week. (Id. at 5, 7.) Nonetheless, neither Defendant Cheney nor the physical therapist returned for a month and a half, despite Plaintiff's repeated inquiries to nurses and submission of sick call slips. (Id. at 7.) Plaintiff did not have a follow up appointment in Savannah. (Id. at 9.)

When Dr. Cheney returned to Plaintiff's cell near the end of September 2012 to examine Plaintiff's hand, he asked if Plaintiff had been doing the exercises he had been given because although he would try to help Plaintiff during weekly rounds, Plaintiff must do his own therapy. (Id. at 7 and Ex. 1.) The next week, arrangements were made for Plaintiff to be taken to the medical department for his therapy, but the medical department never sent for him. (Id. at 8.) Plaintiff filed a grievance and wrote a letter to Defendant Zanders complaining that he had not received his physical therapy. (Id. at 9.) Defendant Zanders denied the grievance, explaining Plaintiff had been seen by medical staff and instructed on what exercises to do for his hand. (Id. and Ex. 2.)

Plaintiff then transferred out of TSP for one week to go to court, and upon his return to TSP on October 11, 2012, a physical therapist examined his hand and said Plaintiff "needed physical therapy badly." (Id. at 10.) Plaintiff was then assigned a cell in the medical department, and his physical therapy was to begin the next week. (Id.) However, the air conditioning was too cold for Plaintiff in the medical department, and on October 16, he asked to be moved to another cell. (Id.) Prison officials accommodated Plaintiff's request, but because TSP was on lockdown, Plaintiff could not leave his new cell to attend physical therapy. (Id. at 11.)

The following week, Dr. Cheney told Plaintiff he could not go to physical therapy because he had been masturbating in front of the nurses. (Id.) Plaintiff denied the accusation and pointed out that he had no disciplinary referrals on file for masturbating. (Id.) Plaintiff wrote a letter to former Defendant Dees about his inability to get physical therapy and the false accusations about masturbating. (Id. at 11-12 and Ex. 4.) She forwarded Plaintiff's letter to Defendant Yawn, with a notation that if Plaintiff did not have a disciplinary referral for masturbation, "he gets same physical therapy as other inmates." (Id.) However, Defendant Yawn "did not stop Dr. Cheney in his pligh[t] to cover up what he had done." (Id. at 12.) Plaintiff can no longer use his left hand, and he seeks compensatory and punitive damages from each Defendant. (Id. at 6, 12.)

II. DISCUSSION

Because Judge Bowen already dismissed Defendant Dees from this case, (doc. no. 17), the Court will confine its discussion to Defendants Zanders and Yawn. These two Defendants assert that they should be dismissed from this case because (1) Plaintiff's allegations against them are insufficient to subject them to supervisory liability for deliberate indifference, and (2) they are entitled to qualified immunity. (See doc. no. 23-1.) As explained below, Defendants' motion to dismiss should be granted.

A. Legal Standard

In considering a motion to dismiss under Rule 12(b)(6), the court tests the legal sufficiency of the complaint, not whether the plaintiff will ultimately prevail on the merits. Adinolfe v. United Tech. Corp., 768 F.3d 1161, 1168 (11th Cir. 2014). The court must accept as true all facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). The court, however, need not accept the complaint's legal conclusions as true, only its well-pled facts. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

Furthermore, a claim should not be dismissed if the facts alleged in the complaint are sufficient to state a claim for relief that is plausible on its face. 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, 556 U.S. at 678. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id . (quoting Twombly, 550 U.S. at 556). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. While Rule 8(a) of the Federal Rules of Civil Procedure does not require detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A complaint is insufficient if it "offers labels and conclusions' or a formulaic ...


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