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Brown v. Oge

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

January 30, 2017

ERIC BROWN, Plaintiff,
v.
MARC OGE, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

         This matter is before the Court on Plaintiff's Second Amended Complaint. (Doc. 29.) For the reasons and in the manner set forth herein, I RECOMMEND the Court DISMISS Plaintiff's putative claims against medical personnel Meke Conteh. The Court DIRECTS the United States Marshals Service to serve a copy of this Order and Documents Numbered 26, 28, and 29 upon Defendant Oge.

         BACKGROUND[1]

         Plaintiff is incarcerated at Ware State Prison in Waycross, Georgia. (Doc. 1.) On August 30, 2015, at approximately 9:00 p.m., Defendant Marc Oge slammed Plaintiff's hand in a cell door without provocation on Plaintiff's part. (Doc. 29, p. 1.) Plaintiff was examined in the medical department that evening, and Physician's Assistant Meke Conteh told Plaintiff that his hand was not broken. (Id.) As many as four weeks later, Plaintiff received an x-ray which revealed that his hand was broken. (Id. at p. 2.) He contends “medical” put a splint on his thumb, which was a thin wooden stick and a brown bandage he wore for four to five weeks before getting a cast. (Id.) Plaintiff maintains he is in chronic and substantial pain as a result of not getting proper treatment.

         In his original Complaint, Plaintiff named Warden Tom Gramiak and CO II Officer Oge as the Defendants. (Doc. 1, p. 4.) However, Plaintiff moved to amend his Complaint on December 14, 2015, to name Edwina Johnson, the Deputy Warden of Care and Treatment, as the only Defendant. (Doc. 4.) Plaintiff stated that he attempted to obtain the names of the officers who were involved in the use of force against him and the denial of medical care but had been unable to do so. (Id.) Thus, he asked that the Court allow Defendant Johnson to remain as a Defendant for the purposes of determining the identity of the proper defendants. (Id.)

         On February 18, 2016, the Court granted Plaintiff leave to amend and allowed Plaintiff's claims to proceed against Defendant Johnson, Defendant John Doe Correctional Officer, and Defendant John Doe Medical Personnel. In that Order, the Court concluded that Plaintiff could not establish a claim for monetary relief against Defendant Johnson. (Doc. 8, pp. 8-10.) However, the Court found that, to the extent Plaintiff contended that he has still not received medical relief, he stated a plausible claim against Defendant Johnson for injunctive relief. (Id. at p. 9 (citing Luckey v. Harris, 860 F.2d 1012, 1015-16 (11th Cir. 1988).) Additionally, the Court stated that there was some authority for Plaintiff's proposal to proceed against Defendant Johnson in order to obtain the identity of the two John Doe Defendants. (Id. at p. 8 (citing Satchell v. Dilworth, 745 F.2d 781, 786 (2d Cir. 1984).) Accordingly, the Court ordered the United States Marshal to serve Johnson with the Complaint. (Id. at p. 11.) The Court stated that it “expects that Defendant Johnson and her counsel will cooperatively participate in discovery to expedite the effort to identify those individuals that Plaintiff alleges used excessive force against him and denied his access to medical care.” (Doc. 8, p. 10.) Unfortunately, that did not occur.

         Following service of the Complaint, Defendant Johnson moved to dismiss all claims against her. (Doc. 12.) Johnson's arguments echoed the Report and Recommendation's conclusion that Plaintiff had not stated any plausible claims for monetary relief against her. (Doc. 12-1, pp. 3-6.) Additionally, Johnson argued that Plaintiff had not and could not assert any injunctive relief claims against her. (Id. at pp. 6-10.) Lastly, Johnson argued that she should not remain in the case for the purpose of Plaintiff obtaining discovery from her. (Id. at pp. 10- 19.) Johnson proposed that the Court should instead allow Plaintiff to engage in limited non-party discovery to obtain the names of the John Doe Defendants. (Id. at pp. 19-24.) To that end, Johnson agreed that “she would respond appropriately to any procedurally proper non-party discovery.” (Id. at p. 24.)

         In response to Johnson's Motion, Plaintiff clarified that he did not intend to assert any claims (monetary or injunctive) against Defendant Johnson. (Doc. 17.) He stated that “Defendant Johnson's only role in this action is to provide discovery so that the plaintiff can properly present upon [sic] his case and correctly also to truly name the defendants, dates, and times.” (Id. at p. 3.) Thus, I recommended the Court grant Johnson's Motion to Dismiss, and the Court adopted this recommendation as the opinion of the Court and dismissed Johnson as a named Defendant. (Docs. 22, 27.)

         Following the Court's September 23, 2016, Order, Plaintiff filed a pleading entitled “Motion for Complete of Amended Complaint.” (Doc. 26.) In this pleading, Plaintiff stated he wished to amend his Complaint to name Defendant Marc Oge as the sole Defendant in this case. (Id.) The Court granted Plaintiff leave to amend his Complaint to name the proper Defendant. (Doc. 27, p. 5.) In so doing, the Court informed Plaintiff he must set forth all claims he intends to pursue in this case and the factual allegations supporting those claims. The Court also informed Plaintiff that his Second Amended Complaint would be the operative Complaint in this case and that he must fully state all claims he intends to pursue. Further, the Court advised Plaintiff he should not assert claims the Court had already dismissed. (Id. at p. 6.) Additionally, the Court informed Plaintiff that, following the filing of his Second Amended Complaint, the Court would order service upon Defendant Oge and that Defendant Oge would be the only Defendant remaining upon the docket. (Id.) Plaintiff has now filed his Second Amended Complaint. (Doc. 29.)

         STANDARD OF REVIEW

         Plaintiff has brought this action in forma pauperis under 42 U.S.C. § 1983. Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows an inability to pay the filing fee and also includes a statement of the nature of the action which shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a complaint in which a prisoner seeks redress from a governmental entity. Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         When reviewing a Complaint on an application to proceed in forma pauperis, the Court is guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed.R.Civ.P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without arguable merit either in law or fact.'” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

         Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Rundle, 393 F. App'x 675, 678 (11th Cir. 2010). Under that standard, this Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

         In its analysis, the Court will abide by the long-standing principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”).

         DISCUSSION

         In his Second Amended Complaint, Plaintiff contends Defendant Marc Oge slammed Plaintiff's hand in a cell door without provocation on August 30, 2015, causing Plaintiff's hand to be broken.[2] (Doc. 29, p. 1.) Plaintiff contends Meke Conteh, medical personnel at the prison, refused to provide adequate medical attention on this same date because she told Plaintiff his hand was not broken, just swollen, and he should put ice on it. Plaintiff avers that, when he had x-rays taken some two ...


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