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Maleeah v. Awe

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

October 17, 2018

CAGER A. MALEEAH, Plaintiff,
v.
OLATUNJI AWE, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

         Proceeding pro se and in forma pauperis, Cager A. Maleeah brings this 42 U.S.C. § 1983 action against Drs. Awe and Brown, PA Darcy, and Nurses Terry, Tyler, Green, and Anderson (née Evans). Doc. 1. The Court now screens his Complaint under 28 U.S.C. § 1915A.[1]

         I. BACKGROUND[2]

         Cager Maleeah is incarcerated at Coastal State Prison and contends that, beginning on May 22, 2016, his left foot hurt and was swollen. Doc. 1 at 5. After a few hours on work detail, his discomfort worsened, as his foot became inflamed, bright red, and painful “like it had been dipped in acid.” Id. When taken to the medical unit around 3:00 a.m., Nurse Tyler told plaintiff he could not be seen until the following morning when a physician or physician's assistant would be present. Id. at 5-6. While he waited back in his cell, the pain worsened and his foot became splotchy with purple discolorations. Id. at 6. Nurse Tyler again sent him packing, informing Maleeah he could not “just come to medical without a call-out slip.” Id. Nurse Green, however, examined his foot and told him it appeared to be a spider bite, but nothing could be done until a physician was present. Id.

         Around 7:30 a.m. on the 23rd, Maleeah returned to medical unit to see a physician. After waiting for a few hours, P.A. Darcy examined him and assessed his injury as “infected” “Athlete's foot.” Doc. 1 at 7. She declined to refer Maleeah to Dr. Awe, and instead prescribed foot cream, antibiotics, and Motrin for the pain. Id. Plaintiff was unable to actually get those prescriptions, however, as they had only been “ordered.” Id. at 7-8. By the next morning, his foot had begun leaking “this green nasty smelling fluid from between my toes that smelled like rotten meat.” Id. at 8. Unable to get his prescribed medication, Maleeah returned to the nurse's station to ask to see Dr. Awe and was turned away by Nurse Terry after she determined he did not appear to be in “too much distress.” Id. at 9. That evening, “pill call” on the 24th, Maleeah got his prescriptions for foot cream and antibiotics, but no Motrin since “none had been ordered.” Id. at 10. As Maleeah returned to his cell, his pain was “off the charts” and he noticed “pink streaks coming up from my leg from my foot to about my knee” and “more and more fluid” leaking from his foot. Id. A few hours later, Nurse Green gave him some gauze and “cleanser in a green bottle” and left him to cleanse his own wound, while Nurse Terry again booted him from the nurses' station because he lacked a sick “call out” to be there. Id.

         On the morning of the 25th, Maleeah again saw P.A. Darcy, was given a shot (either of antiobiotics or for pain, it's unclear from the Complaint), and was sent back to his cell where he used a towel to catch the fluid leaking out of his foot. The next morning, the 26th, P.A. Darcy gave him another two shots. Doc. 1 at 11-12. Plaintiff needed help to limp back to his dorm. Id. at 12. With pink streaks now “coming up past his belly button” and some shortness of breath, plaintiff decided the only way to get immediate, meaningful care was to complain of chest pains. Id. at 12-13. An officer called in a “code” to get the “prisoner E.R.” “golf cart ambulance” dispatched, and after conferral, Nurse Jackson and P.A. Darcy called “EMS” to come fetch Maleeah from the prison. Id. at 13. Paramedics immediately assessed his foot as “really infected” and took him to the hospital, where medical staff set to work. Id. at 13-15.

         After examination, the vascular surgeon on duty explained that the infection had “penetrated some of the bones” in Maleeah's foot and that it might require amputation. Doc. 1 at 15. One of the physicians told him that the infection had spread through his body and was approaching his heart, and that it would be a close thing if the antibiotics could stop it. Id. at 16. Multiple bones and one toe were removed, and the extreme round of antibiotics and painkillers plaintiff was administered (his foot left open to continue draining the infection) left him weak, nauseated, and unable to eat. Id. at 17-18 (reporting he lost 17 pounds over the course of the week following surgery). He was discharged back to the prison and provided ongoing care and physical therapy, but experiences ongoing nerve damage, balance problems and resultant injuries from falling, and pain, both physical and “phantom.” Id. at 19-20. He's been told that he's reached maximum recovery, and that his current pain is most likely permanent. Id. at 20. He has been randomly denied medications by Nurse Anderson, without explanation, even after amputation. Id. Maleeah seeks injunctive and monetary relief for his pain and suffering and future medical care. Id. at 21.

         II. ANALYSIS

         Plaintiff advances a claim for denial of medical care in violation of the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (the Constitution imposes a duty upon prison officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care.”). “[N]ot every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quotes and cite omitted). Rather, “an inmate must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prisoner must show that: (1) he had a serious medical need; (2) defendants were deliberately indifferent to that need; and (3) some injury was caused by defendants' indifference. Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).

         Maleeah has alleged sufficient facts to warrant service of the Complaint on defendants P.A. Darcy and Nurses Terry, Tyler, Green, and Anderson. While it is unclear what injury (if any) led to the catastrophic infection, that rapidly progressing infection was clearly a serious medical need[3] and defendants showed deliberate indifference to that need. Such a showing requires: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” Youmans, 626 F.3d at 564 (quote omitted and alteration adopted). Here, the risk of ignoring the rapidly progressing infection was -- or should have been with even cursory examination --obvious, and Coastal State Prison medical staff callously disregarded that risk. Lindley, 652 Fed.Appx. at 805-06.

         A defendant may disregard a risk with more than gross negligence by, inter alia, intentionally failing or refusing to provide medical treatment, delaying treatment, providing grossly inadequate or inappropriate diagnosis or treatment, deciding to take an easier but less efficacious course of treatment, or providing medical treatment that is so cursory as to amount to no medical treatment at all. McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). While Nurse Green did take some steps to treat Maleeah's complaint and P.A. Darcy prescribed some medications, the Court cannot determine at this stage (at least, without further briefing more appropriate to summary judgment) that their care was sufficiently adequate, as to constitute mere “negligence” or “medical malpractice.”

         Being that within three days Maleeah lost a toe and several of his metatarsal bones basically liquefied, however, the P.A. and nurses' provision of foot cream, some gauze, and cleansing ointment before sending Maleeah back to his cell to literally rot suffices to meet the third (more than “gross negligence”) prong of a deliberate indifference showing for screening purposes. See Lindley, 652 Fed.Appx. at 805-06; Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (“grossly incompetent medical care or choice of an easier but less efficacious course of treatment can constitute deliberate indifference.”); see also Nimmons v. Aviles, 409 Fed.Appx. 295, 297 (11th Cir. 2011) (“For medical treatment to rise to the level of a constitutional violation, the care must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness. [The plaintiff] must demonstrate that [the defendants'] response to his medical need was more than merely accidental inadequacy, negligence in diagnosis or treatment, or even medical malpractice actionable under state law.”) (cites omitted). The inexplicable delay in administration of antibiotics, either by shot or prescription, too can support a finding of gross negligence. Lindley, 652 Fed.Appx. at 805-06 (a delay in providing antibiotics which “allowed the infection to worsen to the point that antibiotics were no longer effective, leading to the extensive loss of tissue and skin” can establish deliberate indifference to a serious medical need); Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010) (“Even where medical care is ultimately provided, a prison official may nonetheless act with deliberate indifference by delaying the treatment of serious medical needs.”). Maleeah's claims against P.A. Darcy and the nurses is GREENLIT for service.

         As to Drs. Awe and Brown, however, Maleeah has alleged no facts supporting a violation of his Eighth Amendment rights. See doc. 1. He says the nurses refused to let him see Dr. Awe, not that Dr. Awe refused to provide treatment or provided grossly negligent treatment. He says Dr. Brown later accompanied nursing staff on their rounds to ensure proper treatment, not that Dr. Brown was ever involved in the care failures that led to the amputation of his toe and removal of necrotic tissue. Neither physician is anywhere mentioned, in fact, as having any role whatsoever in the events forming the basis of his Complaint. Both should therefore be DISMISSED from the Complaint.

         III. CONCLUSION

         Accordingly, Drs. Awe and Brown should be DISMISSED.[4]Maleeah's claims for the violation of the Eighth Amendment against PA Darcy and Nurses Terry, Tyler, Green, and Anderson, however, are approved for service and the Clerk is DIRECTED to forward a copy of this Order, along with plaintiff's ...


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