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Davison v. Nicolou

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

March 12, 2018

CINDY DAVISON, as Administrator of the Estate of Randall Davison, Plaintiff,
v.
STEPHEN NICOLOU, P.A., Defendant.

          ORDER

          J. Randal Hall, Judge

         Before the Court is Defendant's motion for summary judgment (doc. 81) and Plaintiff's motion to exclude the testimony of Dr. Kristine Patterson (doc. 80) . The Clerk has given Plaintiff notice of the summary judgment motion and the summary judgment rules, of the right to file affidavits or other materials in opposition, and the consequences of default. Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), have been satisfied. For the following reasons, Plaintiff and Defendant's respective motions are DENIED.

         I. BACKGROUND

         Randall Davison was an inmate at Georgia State Prison PGSP"). (Def.'s Answer, Doc. 54, ¶ 13.) In early January 2015, Mr. Davison received two tattoos from another inmate. (Nursing Note, Jan. 26, 2015, Doc. 79-32) . One tattoo was on Mr. Davison's neck and one was on his forearm. (Reed Dep., Doc. 84-7, at 36.) On January 21, 2015, Mr. Davison went to the GSP medical unit complaining of chest pain. (Nicolou Dep., Doc. 83-3, at 48-49.) Mr. Davison was examined by Defendant Stephen Nicolou, a physician assistant working at the GSP medical unit. (Id. at 9-10.) Defendant prescribed Mr. Davison antiinflammatory medication and sent him back to his dorm. (Id. at 56-57.)

         Over the next two days, Mr. Davison's condition deteriorated. Due to what would later be discovered was an infection caused by his tattoos, Mr. Davison's upper chest began to turn red and his neck appeared swollen. (Kozachyn Dep., Doc. 84-3, at 68.) On January 23, 2015, Mr. Davison returned to the GSP medical unit. (Ball Dep., Doc. 82-1, at 34-35.) Paul Kozachyn, another inmate who was waiting to be seen by a provider, claimed that Mr. Davison's infection was plainly visible and described his neck as "red and swollen to three or four times its normal size on one side . . . ." (Kozachyn Dep. at 67.) Mr. Davison was called into the waiting room and then told he could not be seen until the following Monday. (Id. at 34.) Instead of returning to his cell, Mr. Davison slipped into Defendant's office. (Id. at 36.) Defendant and nurse Calvin Ball were in the office when Mr. Davison entered and "demand[ed] antibiotics." (Ball Dep. at 32; Thrift Dep., Doc. 83-4, at 35.) The meeting lasted a matter of seconds as Officer Stacy Thrift, who was at the other end of the hall, removed Mr. Davison and placed him in a holding cell for "being disrespectful." (Thrift Dep. at 34, 37.) Defendant provided no additional treatment to Mr. Davison. (Nicolou Dep. at 43.)

         On Monday, January 26, 2015, Mr. Davison was brought back to the medical unit by wheel chair. (Oates Dep., Doc. 79-33, at 58) . Nurse practitioner Timothy Hiller recognized that Mr. Davison was suffering from an infection and needed to go to a hospital. (Hiller Dep., Doc. 83-2, at 34.) He was then transferred to Meadows Regional Medical Center ("MRMC") in Vidalia, Georgia. (MRMC Physician Documentation, Doc. 79-6, at 6.) On February 8, 2015, suffering from respiratory and renal failure, Mr. Davison was flown to Atlanta Medical Center. (Atlanta Med. Ctr. Discharge Summary, Feb. 15, 2015, Doc. 79-8, at 1.) He never recovered from his infection and died on February 15, 2015. (Id.)

         On April 4, 2016, Cindy Davison--Randall Davison's sister and the administrator of his estate-brought the present action against Georgia Correctional Health, Sergeant Dedrick Anthony, and Defendant for violating Mr. Davison's Eighth Amendment rights, pursuant to 42 U.S.C. § 1983.[1] (Doc. 1.) Defendant now moves for summary judgment and argues that he is entitled to qualified immunity.

         II. LEGAL STANDARD

         A motion for summary judgment will be granted if there is no disputed material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Facts are material if they could affect the results of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view facts in the light most favorable to the non-moving party and draw all inferences in its favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant initially bears the burden of proof and must demonstrate the absence of a disputed material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant must also show no reasonable jury could find for the non-moving party on any of the essential elements. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

         If the movant carries its burden, the non-moving party must come forward with significant, probative evidence showing there is a material fact in dispute. Id. at 1116. The non-movant must respond with affidavits or other forms of evidence provided by Federal Rule of Civil Procedure 56. Id. at 1116 n.3. The non-movant cannot survive summary judgment by relying on its pleadings or conclusory statements. Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981). After the non-movant has met this burden, summary judgment is granted only if "the combined body of evidence is still such that the movant would be entitled to a directed verdict at trial - that is, such that no reasonable jury could find for the non-movant.'7 Fitzpatrick, 2 F.3d at 1116.

         III. DEFENDANTS MOTION FOR SUMMARY JUDGMENT

         Defendant claims that summary judgment is appropriate because he is entitled to qualified immunity. Qualified immunity protects government officials from suit so long as their conduct does not violate clearly established law. Morris v. Town of Lexington, 748 F.3d 1316, 1321 n.15 (11th Cir. 2014). The defendant must first show he was acting within his discretionary authority. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). The burden then shifts, and the plaintiff must show qualified immunity is not appropriate. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

         To survive summary judgment, the plaintiff must show the officer's conduct (1) violated a constitutional right that (2) was clearly established when the violation occurred. Id. Clearly established rights are those set by precedent of the United States Supreme Court, the Eleventh Circuit, and the Georgia Supreme Court. Snider v. Jefferson State Cmty. Coll., 344 F.3d 1325, 1328 (11th Cir. 2003). The case does not need to be directly on point and only needs to give the defendant fair notice that his conduct was unconstitutional. Mitello v. Sherriff of the Broward Sheriff's Office, 684 Fed.Appx. 809, 813 (11th Cir. 2017). Plaintiff does not dispute that Defendant was acting in his discretionary authority. Therefore, Plaintiff must show that Defendant violated Mr. Davison's Eighth Amendment rights and that those rights were clearly established.

         A. ...


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