Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McIlwain v. Burnside

United States District Court, M.D. Georgia, Macon Division

January 30, 2019

MARCO MCILWAIN, Plaintiff,
v.
DR EDWARD BURNSIDE, et al., Defendants.

          REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Defendants' motion to dismiss Plaintiff's complaint (ECF No. 17). For the reasons explained below, it is recommended that Defendants' motion be granted and Plaintiff's complaint be dismissed.

         BACKGROUND

         Plaintiff's claims arise from his treatment in the Special Management Unit (“SMU”) at the Georgia Diagnostic and Classification Prison (“GDCP”) in Jackson, Georgia. Compl. 3, ECF No. 1. He claims that on August 11, 2016, he arrived at the SMU with serious injuries including “5 stab wounds to the head, ” “several deep puncture wounds to the back, ” and a collapsed lung. Compl. Attach. 1 at 3, ECF No. 1-1. Defendant Burnside, the prison physician, told Plaintiff that he would be housed in an observation cell “due to the seriousness of the injuries.” Id. Plaintiff inquired about pain medication and Defendant Burnside said Defendant Adair-a prison nurse-would provide him with pain medication. Id.

         Approximately five days later, Defendants Burnside and Adair were making their rounds in the SMU and Plaintiff again asked for pain medication, telling them he “was hurting real bad and c[ould] barely breath[e].” Id. Plaintiff states that Defendants Burnside and Adair ignored him. Id.

         Two days later, Plaintiff states his “back locked up” and “he couldn't move and was in excruciating pain.” Id. Plaintiff was taken to medical and examined by another prison nurse who called Defendant Burnside and told him that Plaintiff was in “real bad pain and his right lung was diminishing.” Compl. Attach. 1 at 4. Plaintiff was told that Defendant Burnside would see him the next morning. Id. Defendant Burnside did not see Plaintiff the next morning, even though Plaintiff's “pain was so bad that he couldn't get his food tray.” Id.

         After another three days, Plaintiff notified Defendant Adair that he was still in “excruciating pain” and that his “wounds were bleeding through his shirt.” Compl. Attach. 1 at 5. Plaintiff asked when Defendant Adair would “do dressing change and clean the wounds so they wouldn't get infected[]” and again requested pain medication. Id. Plaintiff alleges Defendant Adair again ignored him. Id.

         After another week, Plaintiff's wounds again began to bleed “real bad” leaving him in “excruciating pain.” Id. Defendant Uglee, a prison lieutenant, notified medical but was told “medical . . . wasn't coming to SMU.” Id. Defendant Burnside saw Plaintiff the next day and prescribed him pain medication, three weeks after Plaintiff first requested help. Compl. Attach. 1 at 6. Plaintiff continued to have issues with pain and notified Defendants Adair and Burnside about his symptoms multiple times. Id. At some point, it appears Defendant Burnside stopped providing Plaintiff with pain medication or prescribed Plaintiff with medication that he knew was not effective. Compl. Attach. 1 at 7.

         Plaintiff also alleges that Defendant Adair gave him the wrong medication, causing Plaintiff to become dizzy, vomit, and suffer from “real bad” stomach and chest pains for approximately twenty-one hours. Id. at 9-11. Plaintiff contends that when he informed Defendants Adair and Uglee that he had received the wrong medication, they laughed at him and refused to provide him with any treatment for his symptoms. Id. at 11. Plaintiff also alleges that Defendant Burnside refused to provide him with treatment “after gaining knowledge that Nurse Adair gave [Plaintiff] the wrong medication.” Id. at 16.

         Plaintiff additionally asserts that he filed numerous grievances regarding these incidents, and that on one occasion Defendant Uglee asked him to “drop the grievance, ” and when Plaintiff refused to do so Defendant Uglee refused to feed Plaintiff that day. Compl. Attach. 1 at 7, 11, 14. Plaintiff also appears to allege that Defendant Adair intentionally gave him the wrong medication “after gaining knowledge” that Plaintiff had filed grievances against her. Id. at 18.

         Plaintiff contends that Defendants' actions have violated his constitutional rights and seeks declaratory relief, injunctive relief, compensatory and punitive damages, a jury trial, and costs in this action, as well as “any additional relief this court deems just, proper, and equitable.” Id. at 20-21.

         DISCUSSION

         Defendants move to dismiss Plaintiff's complaint on the grounds that he failed to exhaust his administrative remedies. Mot. to Dismiss 1, ECF No. 17. Defendant contends the GDCP grievance process was deficient such that it was not actually available to him, and, alternatively, that he did exhaust his administrative remedies. Br. in Supp. of Resp. to Mot. to Dismiss 11-15, 16, ECF No. 23-1. Because the Court finds that Plaintiff did not exhaust his administrative remedies, it is recommended that Defendants' motion be granted and Plaintiff's complaint dismissed.

         I. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.