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Ludy v. Emmons

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

July 16, 2018

MITCHELL LUDY, Plaintiff,
v.
SHAWN EMMONS, Warden; CONSTANCE PULLINS, Nurse; CERT SGT. HURST; CERT OFC. SMITH; and CERT OFC. TIMMONS Defendant.

          ORDER

          BRIAN K. EPFS UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OT GEORGIA

         Plaintiff, currently incarcerated at Calhoun State Prison in Morgan, Georgia, commenced the above-captioned case pursuant to 42 U.S.C. § 1983 regarding events allegedly occurring at Johnson State Prison (“JSP”) in Wrightsville, Georgia. 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 COMPLAINT

         A. BACKGROUND

         Plaintiff names as Defendants (1) Shawn Emmons, Warden; (2) Constance Pullins, Nurse; (3) CERT Sgt. Hurst; (4) CERT Ofc. Smith; and (5) CERT Ofc. Timmons. (Doc. no. 9, pp. 1-3.) 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 April 28, 2016, JSP Physician Assistant Lindsey prescribed nebulizer breathing treatments for Plaintiff starting April 29, 2016. (Id. at 5.) Defendant Pullins refused to provide Plaintiff with his nebulizer treatment on the following dates: April 29, 2016; May 2, 2016; May 3, 2016; May 13-18, 2016; and May 21-22, 2016. (Id.) Defendant Pullins discontinued Plaintiff's breathing treatments on May 23, 2016. (Id.)

         On June 28, 2016, Defendants Hurst, Timmons, and Smith came to Plaintiff's cell and ordered Plaintiff and his roommate out of the cell. (Id. at 6.) They pat-searched Plaintiff's roommate and sent him to the TV room, but asked Plaintiff to step back into the cell and strip to ensure Plaintiff was not hiding anything in his body cavities. (Id.) Defendants did not find a cell phone in Plaintiff's possession. (Id.)

         After the search, Plaintiff walked down the stairs to the TV room. (Id.) Fellow inmate Cedrick Williams asked Plaintiff to kick a Styrofoam cup under his cell, which Plaintiff did. (Id.) Defendants Hurst, Timmons, and Smith removed inmate Williams and his roommate and searched the cell. (Id. at 7.) They found a cell phone and charger in the locker box of the cell. (Id.) Defendants Timmons told Plaintiff, “I told you I'd get you, ” handcuffed Plaintiff, and led him to the shower to be strip searched again. (Id. at 7-8.) After Defendant Timmons read Plaintiff his rights, Plaintiff asked for his inhaler because the shower was hot, exacerbating his asthma and causing him to have difficulty breathing. (Id. at 8.) Defendants Timmons and Hurst told Plaintiff his inhalers had been thrown away. (Id.) Plaintiff then looked to Defendant Smith who put her hands in the air and shrugged. (Id.)

         On June 30, 2016, Plaintiff attempted to get an emergency inhaler from Defendant Pullins and witnesses Rogers and Bryan Jr., but they did not provide him with one. (Id. at 9.) On July 4, 2016, Plaintiff asked Nurse Choice for an emergency inhaler, and she provided one to him. (Id.)

         During the shower encounter with Defendants Hurst, Timmons, and Smith, Plaintiff informed them he needed an extension cord for his C-PAP breathing machines, but they did not provide him with one. (Id. at 8.) Plaintiff also spoke to various other prison officials, but to no avail. (Id. at 9.) On July 6, 2016, after Ofc. Grissett told Sgt. Hicks that Plaintiff needed an extension cord, Sgt. Hicks moved Plaintiff to another dorm room and gave him an extension cord for his C-PAP. (Id. at 9-10.)

         Liberally construing Plaintiff's allegations in his favor and granting him the benefit of all reasonable inferences to be derived from the facts alleged, the Court finds Plaintiff has arguably stated a claim for deliberate indifference to his asthma against Defendants Pullins, Hurst, Smith, and Timmons. See Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995) (asthma, with continual breathing problems and with intermittent wheezing, coughing, and hyperventilating, can constitute serious medical need); see also Thomas v. Mikell, No. CIV.A. 608-012, 2008 WL 2156362, at *2 (S.D. Ga. May 22, 2008) (severe asthma attack leading to physical harm can state Eighth Amendment claim). In a companion Report and Recommendation, the Court recommends dismissal of Plaintiff's claims against Defendant Emmons.

         II. INSTRUCTIONS

         IT IS HEREBY ORDERED that service of process shall be effected on Defendants Pullins, Hurst, Smith, and Timmons. The United States Marshal shall mail a copy of the amended complaint (doc. no. 9) and this Order by first-class mail and request that the defendants waive formal service of the summons. Fed.R.Civ.P. 4(d). Individual defendants have a duty to avoid unnecessary costs of serving the summons, and if a defendant fails to comply with the request for waiver, the defendant must bear the costs of personal service unless good cause can be shown for failure to return the waiver. Fed.R.Civ.P. 4(d)(2). A defendant whose return of the waiver is timely does not have to answer the complaint until sixty days after the date the Marshal mails the request for waiver. Fed.R.Civ.P. 4(d)(3). However, service must be effected within 90 days of the date of this Order, and the failure to do so may result in the dismissal of any unserved defendant or the entire case. Fed.R.Civ.P. 4(m). Plaintiff is responsible for providing sufficient information for the Marshal to identify and locate the defendant to effect service.

         IT IS FURTHER ORDERED that Plaintiff shall serve upon the defendants, or upon their defense attorney if appearance has been entered by counsel, a copy of every further pleading or other document submitted to the Court. Plaintiff shall include with the papers to be filed a certificate stating the date a true and correct copy of any document was mailed to the defendants or their counsel. Fed.R.Civ.P. 5; Loc. R. 5.1. Every pleading shall contain a caption setting forth the name of the court, the title of the action, and the file number. Fed.R.Civ.P. 10(a). Any paper received by a District ...


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