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Dunham v. Zanders

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

January 9, 2019

ANTONIO LAMAR DUNHAM, Plaintiff,
v.
SAM ZANDERS, Warden; TINA SANDERS, Warden of Care and Treatment; JOHN INMAN, Deputy Warden; TREVON GILBERT, Correctional Officer; DR. NURALLAH ESMAIL; DR. PAUL J. SYRIBEYS; SCOTT WILKES, Warden; DR. MARY ALSTON; and DR. EDMOND RITTER, individually and in their official capacities, [1] Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EFPS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, an inmate at Central State Prison in Macon, Georgia, brought this case pursuant to 42 U.S.C. § 1983, concerning events alleged to have occurred in Dodge County, Laurens County, Washington County, and Richmond County, Georgia. Plaintiff is proceeding pro se and in forma pauperis (“IFP”). Before the Court is Defendants Zanders, Sanders, Wilkes, Esmail, Alston, Ritter, and Inman's pre-answer partial motion to dismiss, (doc. no. 53), and Defendant Syribeys's pre-answer motion to dismiss, (doc. no. 63), (motions together as “Defendants' motions”). For the reasons stated below, Court REPORTS and RECOMMENDS Defendants Zanders, Sanders, Wilkes, Esmail, Alston, Ritter and Inman's motion to dismiss be GRANTED IN PART and DENIED IN PART, and Defendant Syribeys's motion to dismiss be GRANTED.

         I. BACKGROUND

         A. Plaintiff's Complaint

         1. Assault

         On April 25, 2016, while Plaintiff was incarcerated at Dodge State Prison (“DSP”), Plaintiff wrote DSP Warden Zanders about being moved to a different room because his cellmate, Rashad Smith, threatened Plaintiff and “told him he had to go [be]cause he didn't trust [Plaintiff].” (Doc. no. 1, p. 11.) Warden Zanders never responded. (Id.) On May 2, 2016, Warden Zanders inspected the dorm, and Plaintiff asked him if he received the letter. (Id.) Warden Zanders told Plaintiff he did not and instructed him to write another. (Id.) Plaintiff did so but received no response. (Id.) Warden Zanders failed to move Plaintiff despite knowing Smith had previously “bitten off a piece” of a former cellmate's ear. (Id. at 23.)

         On May 10, 2016, Plaintiff returned to his room from putting his bed sheets in the laundry cart to find Smith had locked the door and would not let in Plaintiff. (Id. at 7.) Plaintiff asked Smith why Smith had not allowed Plaintiff to put on his leg brace and pants. (Id.) Smith “burst[] out of the room howling I'm tired of your shit, ” and attacked Plaintiff. (Id.) Smith attempted to drag Plaintiff into their room and bit Plaintiff on his hand and head. (Id.)

         After Smith stopped attacking, Plaintiff went to the control booth to get medical attention. (Id.) Officers Trevon Gilbert and an unidentified officer were not in the control booth, so Plaintiff began beating the windows of the control booth. (Id. at 8.) The officers, who were serving breakfast in another dorm, came into view through the window. (Id.) Plaintiff showed Officer Gilbert he was bleeding from his face and hand. (Id.) Officer Gilbert “turned his back on” Plaintiff, and the officers “refused to respond.” (Id.)

         When Smith left their room, Plaintiff returned to put on his leg brace and pants. (Id.) Smith returned, “grabbed [Plaintiff] in a headlock and stated sense [sic] I know I'm going to lockdown I'm gonna give you something to remember me by forever.” (Id.) Smith “put [Plaintiff's right] ear in his mouth and ripped it completely out of [Plaintiff's] head leaving a big hole.” (Id.) Plaintiff returned to the control booth and “beat on the window for several minutes” until Officer Gilbert saw him. (Id.) Plaintiff showed Officer Gilbert the injury, and Officer Gilbert called his supervisor to the scene. (Id.) The officers took Plaintiff to medical, and a nurse placed Plaintiff's ear in saline and ice for reattachment at the hospital. (Id.)

         2. First Ear Surgery and Post-Operative Care

         Officers transported Plaintiff to a hospital in Dublin, where he received medication. (Id. at 9.) A doctor at the hospital told Plaintiff of the need to transfer him to Dr. Syribeys in Macon for surgery and Dr. Syribeys's opinion, stated in a phone call, that the ear could not be reattached. (Id.) Officers took Plaintiff to Dr. Syribeys in Macon. (Id.) Plaintiff asked Dr. Syribeys if he was sure there was no way for the ear to be reattached, and Dr. Syribeys told him “there's no way medically possible . . . .” (Id.) After the transfer, Plaintiff “was left with no choice but to let Dr. Syribeys do the surgery.” (Id.) After surgery, Dr. Syribeys said no follow- up appointment was necessary and the ear should stop bleeding in four days. Drs. Syribeys and Nurallah Esmail and DSP Wardens Zanders, Sanders, and Inman decided not to reattach Plaintiff's ear because it was “an easier cheaper but much less effective course of treatment.” (Id. at 22.)

         Officers returned Plaintiff to Dodge State Prison. (Id. at 9.) Dr. Esmail ordered Nurses Jackson and April to clean the blood from Plaintiff's ear canal with cotton swabs and a mixture of saline and peroxide. (Id.) Beginning on May 16, 2016, Plaintiff complained to Dr. Esmail and Nurses April, Smith, and Jackson about extreme pain, bleeding, headaches, and loud ringing in his right ear, but they told Plaintiff nothing was wrong. (Id. at 10.) On May 19, 2016, Plaintiff was rushed back to the Dublin hospital with extreme pain and swelling in his neck. (Id.) A doctor diagnosed Plaintiff with an infection, prescribed antibiotics, and recommended Plaintiff see a specialist immediately. (Id.)

         On May 23, 2016, Plaintiff was still bleeding out of his right ear. (Id.) Dr. Esmail told Nurse April to clean the blood from Plaintiff's infected ear, but she refused, saying she did not want to lose her license for performing the procedure. (Id.) Nurse Smith cleaned Plaintiff's ear instead. (Id.) Nurse April told Plaintiff she did not know why Dr. Esmail would not send him to a specialist. (Id.) After Nurse April's statement, Plaintiff began contacting family members to contact prison officials on his behalf. (Id.) “Dodge Medical and Counselor Ms. Fuqua Chief” told Plaintiff's sister Plaintiff would be sent out for treatment soon, but he never was. (Id.)

         3. Complaints and Grievances

         On May 25, 2016, Warden Zanders visited the unit where Plaintiff was located, and Plaintiff informed him of his symptoms and Dr. Esmail's refusal to send Plaintiff for outside medical attention. (Id. at 11.) Plaintiff showed Warden Zanders the bleeding and asked for medical attention. (Id.) Warden Zanders said he would “see what he could do, ” but Plaintiff did not hear from Warden Zanders again until he denied Plaintiff's grievance regarding Dr. Esmail two months later. (Id.) By May 28, 2016, Plaintiff was “suffering from mental depression caused by extreme pain and medical neglect.” (Id.) Warden of Care and Treatment Sanders came to Plaintiff's cell, and Plaintiff showed her the blood on his pillow and asked why medical was not providing additional treatment. (Id.) Warden Sanders only slammed the cell door window flap in Plaintiff's face. (Id.)

         Warden Zanders had a subordinate tamper with Plaintiff's reports regarding the attack and hindered or tampered with Plaintiff's mail, grievance forms, disciplinary forms, and medical files. (Id. at 12, 22.) On June 14, 2016, Plaintiff filed a grievance against disciplinary investigator Ms. Scott for “misleading and abusing disciplinary proc[e]dures by forging and/or adding words to [Planitiff's] disciplinary forms” regarding the attack by Smith. (Id. at 12.) Ms. Scott came to Plaintiff's cell after the attack to ask if Plaintiff had anything to tell Warden Zanders about the attack. (Id.) Plaintiff gave a statement to Ms. Scott, who said she would write down what Plaintiff said. (Id.) Ms. Scott gave Plaintiff a blank form to sign and told Plaintiff there would be a disciplinary hearing soon, but none ever occurred. (Id.) Dodge Prison, the Georgia Department of Corrections, administration, security, and medical staff attempted to hinder Plaintiff from filing a complaint about the attack. (Id.)

         4. Prison Transfer and Second Ear Surgery

         Between June 16, 2016, and June 22, 2016, Plaintiff was transferred to Washington State Prison (“WSP”) “for flooding his cell after being refused medical attention.” (Id.) WSP Warden Michael Conley asked Plaintiff about the attack at DSP and told Plaintiff to write him a letter so he could investigate the matter. (Id. at 13.) Warden Conley returned a few weeks later and told Plaintiff he did not think Plaintiff was being treated fairly and he was going to do everything he could to make sure medical would stop the bleeding in Plaintiff's ear. (Id.) However, WSP counselors Ms. Roberson, Ms. Davis, and Ms. Atkins “hinder[ed] and threaten[ed]” Plaintiff for asking to see grievance responses. (Id.) They also denied Plaintiff's request for mental health assistance. (Id.)

         During July 2016, Plaintiff was transferred to Augusta State Medical Prison (“ASMP”). (Id. at 14.) Dr. Bohannon ran tests and recommended surgery to open Plaintiff's ear canal, replace his right ear lobe, stop the infection, and improve hearing. (Id.) Dr. Bohannon informed Plaintiff the bleeding had almost stopped and prescribed medication for headaches and dizziness. (Id.) Dr. Bohannon also recommended the nurses stop cleaning out Plaintiff's ear with the medical swabs and said the nurses “should not have been doing that.” (Id.) Dr. Bohnannon asked Plaintiff why Dr. Syribeys did not perform a follow-up evaluation. (Id.)

         Dr. Bohannon tried to perform surgery on Plaintiff's ear for almost two years, but ASMP Warden Scott Wilkes and medical administrators Drs. Alston and Edmond Ritter rescheduled and delayed surgery on November 29, 2016, May 18, 2017, and September 28, 2017. (Id.) Officials would take Plaintiff's blood and give him a pre-operation physical but they would not perform the surgery. (Id.) During the delay, Plaintiff was treated for at least eight ear infections, dizzy spells, extreme pain, migraine headaches, loud ringing in his head, head injuries from falling, and depression. (Id. at 15.)

         After Plaintiff requested forms for filing a lawsuit about the attack, ASMP officials decided to perform surgery. (Id.) On October 7, 2017, doctors performed ear reconstruction surgery on Plaintiff's right ear. (Id.) Following the surgery, the doctors told Plaintiff at least two additional surgeries would be required to “get [Plaintiff's] ear back to satisfactory form.” (Id.) However, Plaintiff refused additional surgery because “the doctors messed up [his] arm during the ear surgery.” (Id.) The doctors put Plaintiff on antibiotics and pain medication to reduce the swelling and pain in Plaintiff's arm, but he continues to suffer from extreme pain in his arm and left side. (Id.) Plaintiff has complained about the pain, but Central State Prison's medical department is ignoring his requests. (Id.) Plaintiff has written medical administrators at Central State Prison about reviewing his medical file, but they have refused to respond. (Id. at 16.)

         B. Procedural History

         On June 15, 2018, the Court allowed the following claims to proceed ...


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