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Ludy v. Morris

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

January 18, 2018

MITCHELL LUDY, Plaintiff,
v.
DEANNE MORRIS, Health Service Administrator, Ga. Regent Health System; CHERIE PRICE, Deputy Warden; WESLEY O'NEAL, Unit Manager; JESSICA BYRD, Correctional Officer; CONSTANCE PULLINS, Nurse; JASON HURST, Cert. Officer; LARRY TIMMONS, Cert. Officer; LAKEISHA SMITH, Cert. Officer; JAMIE CLARK, Deputy Warden Administration; ANGIE CLAXTON, Nurse; PEARLENE ROGERS, Nurse; WALT BRYAN, Nurse; PAMELA LINDSEY, Nurse Practitioner; and ANNIE ANDREW-BODI, Physician Assistant, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an inmate at Calhoun State Prison in Morgan, Georgia, brought this case pursuant to 42 U.S.C. § 1983 regarding events alleged to have occurred at Johnson State Prison (“JSP”) in Wrightsville, Georgia. Plaintiff is proceeding pro se and in forma pauperis. For the reasons set forth below, the Court REPORTS and RECOMMENDS Defendants' partial motions to dismiss (doc. nos. 49, 64) be GRANTED.

         I. BACKGROUND

         With respect to the remaining Defendants in this action, Plaintiff alleges the following facts.

         On September 29, 2015, the Physician's Assistant (“PA”) at JSP gave Plaintiff the following medical profile by: no chemicals, fumes or dust, may wear own ortho shoes, climate control dorm, CPAP machine, bottom bunk, Ted hose, soft shoes, shoe inserts, and heat intolerance. (Doc. no. 22, p. 11.) Despite this designation, Defendant Price ordered Defendant Morris to discontinue Plaintiff's assisted living profile and move him to a non-assisted living dorm at JSP. (Id.) Plaintiff was forced to share a cell with an inmate who constantly smoked marijuana and cigarettes. (Id. at 12.) Plaintiff filed grievances against Defendants Price and Morris about his situation, but to no avail. (Id.) Because of this exposure to excessive dust, lint, and smoke, Plaintiff experienced an increased risk of an asthma attack. (Id. at 11.)

         On October 30, 2015, Defendant Price removed Plaintiff from his barbering detail in retaliation for filing grievances against her. (Id. at 12.) Although this removal was purportedly due to Plaintiff's potential reaction to chemicals used in the barbershop, Counselor Lindi Humpheries told Plaintiff “somebody in the administration doesn't want the Plaintiff back in the Barber Shop.” (Id.)

         On November 19, 2015, Defendant O'Neal took away Plaintiff's clear plastic container used to store his CPAP breathing machine as part of a security shakedown. (Id. at 13.) Despite filing a grievance, Defendant O'Neal refused to return the container. (Id.) As a result, Plaintiff's machine has been infected by dust, bacteria, vermin, environmental tobacco smoke, and insects, and caused Plaintiff to suffer from wheezing, coughing, headaches, dizziness, nausea, vomiting, breathing difficulty, and sleeping problems. (Id.)

         On April 28, 2016, Defendant Lindsey prescribed nebulizer treatments for Plaintiff's asthma. (Id. at 14.) However, on numerous occasions over the next several months, Defendant Pullins refused to call Plaintiff to the medical department to receive those treatments. (Id.) On one particular occasion, Defendant Byrd as well as Defendant Pullins refused to call Plaintiff to medical for treatment. (Id.) Plaintiff complained to Defendants Lindsey and Andrew-Bodie, but nothing was done. (Id.) Furthermore, Defendant Byrd refused to turn on the exhaust fans in Plaintiff's dorm and therefore no air circulated in the building. (Id.) As a result of these actions, Plaintiff suffered two asthma attacks in the middle of the night on June 11, 2016, and June 13, 2016. (Id.)

         On June 28, 2016, Defendants Hurst, Timmons, and Smith strip-searched Plaintiff on suspicion that he had a cell phone in his possession. (Id. at 15.) Defendants removed Plaintiff to continue their shakedown of his cell. (Id.) During the shakedown, Defendants removed and threw away Plaintiff's inhaler. (Id. at 16.) Plaintiff had to obtain an emergency inhaler from the medical department as a replacement. (Id.) Defendants then handcuffed Plaintiff and placed him in a J-1 security unit without a disciplinary report, which exposed him to extremely high temperatures that could have triggered his asthma. (Id. at 15.) Furthermore, Plaintiff informed these Defendants, along with Defendant Clark, of his need for an extension cord for his CPAP machine, but they refused to provide him with one. (Id. at 16.) However, eight days later, Plaintiff was given back his inhalers and provided an electrical extension cord. (Id. at 17.)

         As a result of all named Defendants' actions, Plaintiff's asthma exacerbated to such a degree he had to be taken to the Fairview Park Hospital emergency room for hyperventilating and cardiac palpitations. (Id.)

         Plaintiff filed twelve grievances during the time period from September 29, 2015, through the commencement of this case. (Doc. no. 49-4, Attch. 2; doc. no. 49-5, Attch. 3.) Four of these grievances were unrelated to Plaintiff's claims in this action. In grievance 214266, Plaintiff claimed he was denied privileges associated with his religion. (Doc. no. 19-5, Attch. 3, pp. 20-29.) In grievances 216943 and 226723, Plaintiff claimed he was refused orthopedic shoes and corresponding inserts. (Id. at 30-46.) In grievance 226723, Plaintiff complained about problems with the JSP business office. (Id. at 99-105.)

         Eight of Plaintiff's grievances arguably relate to his allegations in this lawsuit. Defendants concede Plaintiff properly exhausted his administrative remedies in grievances 206899, 208303, and 219079 with respect to Plaintiff's claims against Defendants Price and Morris for discontinuance of his assisted living profile, Defendant O'Neal for confiscating his CPAP container, and Defendant Byrd for refusing to call Plaintiff to medical for breathing treatments. (See doc. no. 49-1, pp. 9-10.) Thus, five of Plaintiff's grievances remain at issue.

         Plaintiff filed grievance 208440 on November 24, 2015, alleging Counselor Humphries was not allowing him his on the job training barbering hours. (Doc. no. 49-5, Attch. 3, pp. 17-19.) Plaintiff dropped this grievance on December 2, 2015. (Id.)

         Plaintiff filed emergency grievance 219596 on May 24, 2016, alleging Ms. Hall refused to give him breathing treatments and Defendant Pullins falsified his vital information. (Id. at 57-65.) On June 29, 2016, Deputy Warden Price evaluated and denied grievance 219596 on the ground it was not an emergency. (Id.) On October 7, 2016, the grievance process ended when the Central Office failed to respond to Plaintiff's appeal within 100 days. (Id.)

         Plaintiff filed grievance 222517 on July 8, 2016, alleging Defendants O'Neal, Bryan, Pullins, and other prison officials refused to provide him with an electrical cord for his CPAP machine. (Id. at 66-83.) On August 16, 2016, Deputy Warden Price evaluated and denied grievance 222517 on the ground Plaintiff had been provided an electrical cord and the issue resolved. (Id.) On October 12, 2016, the Central Office denied Plaintiff's appeal. (Id.) Plaintiff filed grievance 223177 on July 18, 2016, alleging JSP doctors, medical department, warden, and deputy warden have ignored his heat intolerance medical profile and subjected him to conditions that aggravate his asthma and atrial fibrillation. (Id. at 84-92.) On July 19, 2016, Deputy Warden Price ...


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