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Bush v. Foster

United States District Court, M.D. Georgia, Macon Division

February 9, 2018

Nurse FOSTER, et al., Defendants.



         Presently pending before the Court is Defendants Hill, Jones, Lemon, Merressee, Primus, Toby, and Webbs' Motion to Dismiss (ECF No. 34) and Defendant Foster's Motion to adopt that motion as her own (ECF No. 35).[1] For the reasons explained below, Defendant Foster's Motion to Adopt is granted and it is recommended that Defendants' Motion to Dismiss and Plaintiff's complaint be dismissed.[2]


         Plaintiff's claims arise from an injury suffered on August 26, 2016, while incarcerated at Hancock State Prison (“HSP”). Compl. 5, ECF. No. 1. Plaintiff's allegations regarding alleged medical indifference and unconstitutional retaliation are summarized below.

         I. Alleged Injury & Medical Treatment

         Plaintiff alleges that he fractured his hand “bang[ing] on the shower door very hard” while attempting to notify guards that he had completed his shower. Compl. 5. Plaintiff claims he was not seen by the medical staff for ten days despite immediately telling Defendants Lemon and Jones of his injury and being told they would “call medical.” Id. Plaintiff also informed Defendants Webb, Foster, Primus, Toby, and Hill of his injury and made “numerous sick calls” while waiting to see medical staff. Id. Plaintiff alleges that when “finally” seen by medical staff they ordered x-rays but it was seven days until the x-rays were completed. Compl. 7. Plaintiff states that the x-ray technician indicated his hand was indeed fractured after examining the x-ray results. Id. Plaintiff then saw Defendant Merressee (the “P/A” or “physician's assistant”), who claimed the x-ray results were not in Plaintiff's medical file and told Plaintiff he would “look at them and get back to [him].” Id.

         Plaintiff alleges he then spent a month “asking to see medical and putting in sick calls” before he was seen by another “sick call nurse.” Id. Plaintiff saw Defendant Merressee again but was told “there [was] nothing [they could] do about [Plaintiff's hand]” because “it [was] now an old fracture” and he “need[ed] to get over it.” Id. Plaintiff was transferred to Baldwin State Prison (“BSP”) on November 8, 2016. Id. at 8. Plaintiff claims another x-ray was done on his hand and examined by a doctor at BSP. Id. Plaintiff alleges that doctor told him his hand “had not been treated in an appropriate time frame” and the bone had “grown back crooked” requiring surgery to fix it. Id. Plaintiff asserts that he experiences discomfort, pain, and has limited use of his hand as a result of this experience. Id.

         II. Retaliation Allegations

         Plaintiff's complaint also details a series of actions taken by Defendants Lemon, Primus, and Jones in retaliation for Plaintiff filing his initial grievance. Plaintiff alleges he filed an emergency medical grievance during his initial ten-day wait to see medical staff. Compl. 9. He claims he was “verbally threatened by both [Defendants] Lemon and [] Primus.” Id. Plaintiff states that Defendant Lemon slammed Plaintiff's feeding tray “in his face” while saying “[c]racker don't you know I feed you?” Id. He avers that Defendant Primus removed him from his cell and said “see how easy it is for [Defendant Primus] to get you alone handcuffed where the camera cannot see you?” Id. Plaintiff claims Defendant Primus warned him he was “going to have to make [Plaintiff's] time in the Tier as hard as possible unless that grievance is dropped.” Id. Plaintiff states that following that interaction, Defendants Lemon, Jones, and Primus “launched a campaign of harassment” against him that included denial of telephone use, pain medication, and medical/grievance forms and unnecessary wakeups during night shift. Id. at 9-10. Plaintiff claims this “campaign” caused him mental distress, left him “paranoid and scared to leave [his] cell[, ]” and led to him suffering “several anxiety attacks.” Id. at 10. He alleges that a BSP psychiatrist diagnosed him as having Post Traumatic Stress Disorder (“PTSD”) and a mood disorder “caused by the harassment by the defendants.” Id.


         Defendants Hill, Jones, Lemon, Merressee, Primus, Toby, Webb, and Foster (“Defendants”) filed their Motion to Dismiss (ECF No. 34) on June 26, 2017.[3] On June 29, 2017, Plaintiff was notified of Defendants' motion and his right to “amend his complaint, submit response briefs . . . [and] submit any affidavits and/or documents showing he ha[d] exhausted [available administrative remedies].” Notification of Mot. to Dismiss 4, ECF No. 37. He was warned that failure “to respond to and rebut the legal arguments” made by Defendants could “result in these statements being accepted as uncontested and correct[]” and “[t]he Court could grant judgment to Defendants and there would be no trial or further proceedings for these Defendants.” Id. at 3-4. However, Plaintiff failed to submit any response to Defendants' motion.

         Defendants argue Plaintiff's complaint should be dismissed because they are entitled to various forms of immunity and Plaintiff has not exhausted available administrative remedies or stated a claim upon which relief can be granted. Defs.' Mot. to Dismiss 1, ECF No. 34. Because the Court finds that Plaintiff did not exhaust his administrative remedies, the Court declines to address Defendants' other grounds for dismissal.

         I. Exhaustion Standard

         Title 42, United States Code section 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” “[W]hen a state provides a grievance procedure for its prisoners, as Georgia does here, an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure ...

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