United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE.
currently incarcerated at Augusta State Medical Prison in
Grovetown, Georgia, commenced the above-captioned case
pursuant to 42 U.S.C. § 1983. Because he is proceeding
IFP, Plaintiff's amended complaint must be screened to
protect potential defendants. Phillips v. Mashburn,
746 F.2d 782, 785 (11th Cir. 1984); Al-Amin v.
Donald, 165 Fed.Appx. 733, 736 (11th Cir. 2006).
SCREENING OF THE AMENDED COMPLAINT
names as Defendants (1) Dr. Mary Alston; (2) Shelton, Warden
over Care and Treatment; (3) Dr. Taylor; (4) P.A. Cain; (5)
Dr. William Duke; (6) NPC C. William; (7) Dr. Jed W.
Howington; (8) Dr. Ayaz Chaudhary; and (9) Scott Wilker,
former Warden. (See doc. no. 1, pp. 1, 8-9.) Taking all of
Plaintiff's factual allegations as true, as the Court
must for purposes of the present screening, the facts are as
January 22, 2016, Dr. William Duke performed a thyroidectomy
on Plaintiff. (Id. at 10.) After a biopsy, Dr. Duke
determined Plaintiff had stage II thyroid cancer.
(Id.) He suggested further testing to determine
whether the cancer had spread and told Plaintiff he would
refer him to an associate for an appointment in a few weeks.
(Id.) When Plaintiff saw Dr. Mary Alston in June
2016, he reminded her of the scheduled appointment with Dr.
Duke's associate. (Id.) She said the appointment
must have been overlooked and she would set up an appointment
soon. (Id.) Despite filing several health services
requests, Plaintiff never received an appointment.
(Id. at 10-11.)
December 8, 2016, Dr. Jed Howington saw Plaintiff and
discussed with him the possibility of cancer remaining after
the surgery. (Id. at 11.) Plaintiff saw P.A. Cain on
December 12, 2016, to schedule a follow up appointment on
December 29, 2016, and she told Plaintiff to stop taking his
synthroid medication. (Id.) The December 29th
appointment never occurred, and Plaintiff wrote several
medical and health services requests regarding whether he
should start taking synthroid again since the appointment did
not happen, but did not receive any response. (Id.)
saw a throat doctor at ASMP who suggested radiation treatment
to kill any tissue left over from the surgery. (Id.
at 12.) On April 5, 2017, Dr. Howington and his staff
admitted Plaintiff to Augusta Medical Hospital for radiation
treatment. (Id.) Upon his return, Dr. Howington
instructed the prison that Plaintiff should not be put back
into the general population for five to seven days.
(Id.) However, Plaintiff was placed in general
population the day he returned to ASMP. (Id.)
2017, Dr. Alston saw Plaintiff and told him she would set up
an appointment for cancer treatment on June 8, 2017.
(Id. at 12-13.) On June 13, 2017, Dr. Taylor saw
Plaintiff and asked him why he was not taking his medicine.
(Id. at 13.) Plaintiff responded that Dr. Alston had
set up an appointment for him regarding his cancer, and after
looking it up, Dr. Taylor said the appointment was scheduled
for September 6, 2017. (Id.) Dr. Taylor saw
Plaintiff again on September 13, 2017, and told Plaintiff he
would check on Plaintiff's missed cancer appointment.
(Id.) Plaintiff never received the appointment.
October 4, 2017, Plaintiff saw P.A. Cain for an optometry
follow up and mentioned to her he was having pain in his
throat. (Id. at 13-14) She noted he had previously
had thyroid cancer and sent him to the laboratory for blood
work. (Id. at 14.) Plaintiff also received a throat
MRI on October 11, 2017. (Id.) Plaintiff saw Dr.
Taylor again on January 23, 2018, and he explained to
Plaintiff that Plaintiff would be seen by Dr. Ayaz Chaudhary
for a colonoscopy within the next two or three months.
(Id. at 15.) While Dr. Chaudhary did not perform the
colonoscopy, Plaintiff was seen on March 15, 2018 by a doctor
at Reidsville State Prison who performed a colonoscopy and
ran a camera down his throat. (Doc. no. 1-2, p. 4.) Plaintiff
also notes several discrepancies in his medical records
between services his records indicate he received but in
actuality he did not. (Id. at 1-4.)
Legal Standard for Screening
complaint or any portion thereof may be dismissed if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, or if it seeks monetary relief from a
defendant who is immune to such relief. See 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b). A claim is frivolous
if it “lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 327
(1989). “Failure to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard as
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6).” Wilkerson v. H & S, Inc., 366
Fed.Appx. 49, 51 (11th Cir. 2010) (citing Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
“state a claim for relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal,556 U.S. 662, 678 (2009). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed
factual allegations, “it demands more than an
unadorned, the defendant unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
complaint is insufficient if it “offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action, '” or if it
“tenders ‘naked assertions' devoid of
‘further factual ...