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Evans v. Alston

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

June 12, 2018

KEVIN LAFATE EVANS, Plaintiff,
v.
DR. MARY ALSTON; SHELTON, Warden over Care and Treatment; DR. TAYLOR; P.A. CAIN; DR. WILLIAM DUKE; NPC C. WILLIAM; DR. JED W. HOWINGTON; DR. AYAZ CHAUDHARY; and SCOTT WILKER, Former Warden, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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).

         I. SCREENING OF THE AMENDED COMPLAINT

         A. BACKGROUND

         Plaintiff 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 follows.

         On 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.)

         On 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.)

         Plaintiff 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.)

         In May 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. (Id.)

         On 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.)

         B. DISCUSSION

         1. Legal Standard for Screening

         The 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)).

         To 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 ...


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