United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
se plaintiff Manvel Omar Hopes brings this 42 U.S.C.
§ 1983 action over the medical care that he has received
after a slip-and-fall accident at Chatham County Jail.
See doc. 1 at 5-7. The Court granted him leave to
proceed in forma pauperis (IFP), doc. 6, and he
returned the necessary forms, docs. 11 & 12. The Court
thus proceeds to screen his Complaint. See 28 U.S.C.
allegations are straightforward. He fell in the showers at
Chatham County Jail, after a cleaning product left the floor
slippery. Doc. 1 at 5. The fall injured his back.
Id. He was taken to the infirmary, examined, and
returned to his cell with Ibuprofen. Id. Several
days later, he was examined by a physician, defendant
“Dr. Smith.” Id. at 5-6. Dr. Smith
declined to order an MRI or refer Hopes to an outside
neurologist. Id. at 6. Hopes objects that he was not
prescribed sufficient pain medication and that his injury
left him incapacitated -- “unable to leave bed for
[his] most basic needs . . . .” Id. at 5-6. He
sues Sheriff Wilcher, Correct Health, Dr. Smith, and other
jail employees he alleges were responsible for the
“unsafe environment that caused the initial injury,
” and the allegedly inadequate treatment. Id.
at 7. He seeks compensatory and punitive damages and
injunctive relief. Id. at 8.
slip-and-fall allegation fails to state a claim upon which
relief can be granted. Section 1983 simply cannot be used to
bring a negligence-based tort suit in federal court,
even read most charitably, his allegation that some jail
employee carelessly used the wrong cleaning product on the
shower floor sounds in negligence rather than the
“criminal recklessness” required to support a
§ 1983 claim. Farmer v. Brennan, 511 U.S. 825,
836-40 (1994). To assert a § 1983 claim, Hopes must
allege not only that he was exposed to “a substantial
risk of serious harm” but also that the responsible
prison officials acted with “deliberate
indifference” to that known risk. Id.
at 834. Farmer defined deliberate indifference in
terms of the subjective recklessness used in the criminal
law: “a prison official cannot be found liable under
the Eighth Amendment for denying an inmate humane conditions
of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837.
Negligence, which arises when a person fails to live up to an
objective, reasonable-man standard of conduct, falls
far short of this subjective standard. See
Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir.
2007) (explaining that subjective component of deliberate
indifference requires more than even gross negligence).
none of Hopes' allegations suggest that the cleaning
product was even negligently applied, for he simply
asserts that the cleaning product made the floor slippery,
not that any prison official, exercising due care, should
have known that the product posed such a risk. See
LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993)
(“slippery prison floors . . . do not state even an
arguable claim for cruel and unusual punishment”
(internal quotes and cite omitted)). More to the point, his
allegations fall far short of asserting the level of
culpability required by the Eighth Amendment -- actual,
subjective awareness of a substantial risk to inmate health
or safety. Farmer, 511 U.S. at 840 (“Eighth
Amendment liability requires consciousness of a risk”);
id. at 841 (“deliberate indifference serves
under the Eighth Amendment to ensure only that inflictions of
punishment carry liability”); id. at 842
(“a prison official who was unaware of a substantial
risk of harm to an inmate may . . . [not] be held liable
under the Eighth Amendment [even] if the risk was obvious and
a reasonable prison official would have noticed it”).
leaves Hopes' inadequate-medical-care claim. Prison
officials' deliberate indifference to “an
inmate's serious medical needs violates the inmate's
right to be free from cruel and unusual punishment.”
Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.
1989) (citing Estelle v. Gamble, 429 U.S. 972, 1004
(1976)); see Farmer, 511 U.S. at 832-33 (although
prison conditions may be restrictive and harsh, prison
officials must provide, inter alia, necessary
medical care). A prisoner's mere disagreement with the
type of medical treatment he receives, however, is
insufficient. See, e.g., Hamm v. DeKalb Cty., 774
F.2d 1567, 1575 (11th Cir. 1985) (“Although
[plaintiff/inmate] may have desired different modes of
treatment, the care the jail provided did not amount to
deliberate indifference.”); see also Estelle,
429 U.S. at 107 (“the question whether an X-ray or
additional diagnostic techniques or forms of treatment is
indicated is a classic example of a matter for medical
judgment. A medical decision not to order an X-ray, or like
measures, does not represent cruel and unusual
punishment.”). Even if the treatment an inmate receives
was negligent, that's not enough to support a § 1983
claim. See, e.g. Harris v. Thigpen, 941 F.2d 1495,
1505 (11th Cir. 1991) (citing Estelle, 429 U.S. at
106) (“Mere incidents of [medical] negligence or
malpractice do not rise to the level of constitutional
acknowledges that he received care and treatment after his
fall. Doc. 1 at 5 (stating, after he fell, “medical
staff were immediately alerted[, he] was placed on a back
board for spinal stabilization then moved to medical
department on a stretcher for examination, ” given pain
medication, examined by Dr. Smith two days later,
“moved to the housing unit in the infirmary, ”
and “kept in the infirmary for about two weeks, ”
albeit allegedly “without treatment”). His mere
disagreement with that course of treatment and allegation
that it was inadequate, without more, does not state a claim
of deliberate indifference. See, e.g., Hamm, 774
F.2d at 1575; Holtzclaw v. Morales, 2016 WL 4925786
at * 2 (S.D. Ga. Sept. 14, 2016) His medical-treatment claim,
therefore, also fails.
pro se plaintiffs are often entitled to an
opportunity to amend their complaints, see, e.g., Johnson
v. Boyd, 568 F. App'x 719, 724 (11th Cir. 2014),
Johnson's inadequate-medical-care claim does not appear
amendable. See Jenkins v. Walker, 620 F.
App'x 709, 711 (11th Cir. 2015) (“[A] district
court need not allow amendment if the amended complaint would
still be subject to dismissal.”). His Complaint should
therefore be DISMISSED WITH PREJUDICE.
the Court recommends that all of Hopes' claims be
dismissed, his remaining motions -- to appoint counsel (doc.
3), for access to the law library (doc. 4), to preserve
evidence (doc. 5), for a preliminary injunction (doc. 7), for
service of the Complaint on defendants (doc. 9), and to
“toll the clock, ” (doc. 13), which the Court
construes as a motion to stay this case -- are all
DENIED as moot.
Hopes must pay his $350 filing fee. His furnished account
information shows that he has had a $51.03 average monthly
balance and $230.83 average monthly deposits in his prison
account during the six months prior to filing his Complaint.
Doc. 10 at 1. He therefore owes a $46.17 initial partial
filing fee. See 28 U.S.C. § 1915(b)(1)
(requiring an initial fee assessment “when funds exist,
” under a specific 20 percent formula). His custodian
(or designee) shall set aside 20 percent of all future
deposits from his account and forward same to the Clerk each
time the set aside amount reaches $10.00, until the balance
of the Court's $350.00 filing fee has been paid in full.
Clerk is DIRECTED to send this Report and
Recommendation (R&R) to Johnson's account custodian
immediately. In the event he is transferred to another
institution, his present custodian shall forward a copy of
this R&R and all financial information concerning payment
of the filing fee and costs in this case to his new
custodian. The balance due from Johnson shall be collected by
the custodian at his next institution in accordance with the
terms of this R&R.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge's Report
and Recommendations.” Any request for additional time
to file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F. App'x 542, 545
(11th Cir. 2015).