United States District Court, S.D. Georgia, Dublin Division
K. EPFS UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OT
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).
SCREENING OF THE COMPLAINT
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
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.)
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.)
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
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.
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.)
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.
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
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 ...