United States District Court, M.D. Georgia, Columbus Division
ORDER AND REPORT & RECOMMENDATION
Stephen Hyles United States Magistrate Judge
Court ordered the opening of this case on January 29, 2018.
Order, ECF No. 1. Pending before the Court is Plaintiff's
amended complaint (ECF No. 8) and motions seeking leave to
amend that complaint (ECF Nos. 20, 26, 31), a temporary
restraining order (ECF No. 30), a preliminary injunction (ECF
No. 30), and an order to show cause (ECF No. 38).
Defendants' motion to dismiss Plaintiff's complaint
(ECF No. 32) is also pending. For the reasons explained
below, Plaintiff's motions seeking leave to amend and a
show cause order are denied, and it is recommended that his
motions for injunctive relief be denied and Defendants'
motion to dismiss his complaint be granted.
alleges that “since about March 7, 2016, ” the
Georgia Department of Corrections (“GDC”) has
refused to provide adequate treatment for Plaintiff's
hepatitis C infection in order to save money. Am. Compl. 5,
ECF No. 8. Plaintiff alleges that after waiting four months
for treatment, he was prescribed Interferon by Defendant
Harvey on November 1, 2016, which Plaintiff describes as a
“dirt cheap” medicine with low efficacy and
severe side effects. Id. at 6. Plaintiff claims he
has two “absolute contraindications”-
decompensated cirrhosis and a history of depression-which
should preclude him from Interferon treatment. Id.
at 5. Plaintiff also complains that he is confined at
Rutledge State Prison and only provided specialty medical
care at Augusta State Medical Prison (“ASMP”)
which requires a “[g]rueling 12 Hr. round
trip[.]” Id. Plaintiff-sixty-six years old and
suffering from herniated disc, gout, incontinence, and
anxiety-cannot tolerate the ten-hour bus ride to ASMP.
According to Plaintiff, the bus ride itself constitutes
“cruel and unusual punishment.” Br. in Supp. of
Am. Compl. 4, ECF No. 8-1.
underwent a CAT scan at ASMP on November 1, 2016, after
repeatedly requesting to be assessed for hepatitis. Br. in
Supp. of Am. Compl. 3-4. At ASMP, Defendant Harvey assessed
Plaintiff with hepatitis C and apparently indicated Plaintiff
would be treated with Interferon. Plaintiff filed a grievance
regarding his Interferon treatment on November 7, 2016.
Id. at 4. The warden did not answer the grievance
until May 18, 2017, and responded that “the prison does
not decide what drug to use.” Id. Plaintiff
then appealed to Sharon Lewis, the Medical Director, and she
determined that “medical personnel handled [the] case
further complains that his condition has worsened over the
past few months. Br. in Supp. of Am. Compl. 6. In November
2017, Plaintiff went to the hospital to undergo emergency
paracentesis. Id. During the procedure, several
liters of fluid were removed from Plaintiff's abdomen
which suggests that his cirrhosis is worsening and his
current treatment is ineffective. Id. Plaintiff
claims that treatment by a hepatologist will only be provided
at ASMP or in the case of an emergency. Id. This
results in Plaintiff (1) experiencing a ten-hour bus ride or
(2) having to wait until an emergency to receive treatment.
He thus seeks to be treated locally and states he has a claim
under the Americans with Disability Act.
case was initiated pursuant to this Court's order in a
previous suit which also involved Plaintiff. Greer v.
Corizon Health Inc., No. 4-17-CV-192-CDL-MSH (M.D. Ga.
Jan. 29, 2019) (order granting Plaintiff's request to
refile). Plaintiff's amended complaint in this case (ECF
No. 8) followed three previous complaints regarding the same
issues- the original complaint in the prior case (ECF No. 2)
and amendments to it (ECF Nos. 2-1, 2-2). On April 13, 2018,
the Court conducted a preliminary screening of
Plaintiff's claims. (ECF No. 16).
deliberate indifference claims against Defendant Aikens and
Defendant “John Doe, ” conditions of confinement
claims against Defendant Aikens, and Americans with
Disabilities Act (“ADA”) claims against
Defendants Georgia Correctional Healthcare
(“GCH”) and the GDC were allowed to proceed.
Order & R. & R. 1, ECF No. 16. The Court dismissed
Plaintiff's Eight Amendment claims against GCH officials,
his conditions of confinement claim against Defendant
“John Doe, ” and his ADA claims against
Defendants in their individual capacities. Id. at
1-2; Order, June 6, 2018, ECF No. 27. Defendants moved to
dismiss Plaintiff's remaining claims on June 18, 2018,
arguing Plaintiff failed to exhaust administrative remedies,
failed to state a relievable claim, and that they were immune
to Plaintiff's claims. Mot. to Dismiss 1, ECF No. 32.
Plaintiff was notified of Defendants' motion to dismiss
(ECF No. 36). He responded by arguing that Defendants had
“already defaulted pursuant to their June 18, 2018,
deadline” and had “sent Plaintiff the wrong
‘motion to dismiss.'” Pl.'s Resp. to
Defs.' Mot. to Dismiss 1, ECF No. 40.
Defendants' Motion to Dismiss
Failure to Exhaust
contend that Plaintiff's Eighth Amendment conditions of
confinement claims based on his transportation to ASMP for
treatment and GDC policy that necessitates that
transportation should be dismissed because Plaintiff failed
to exhaust the relevant administrative remedies.
Specifically, they argue that “under [Plaintiff's]
own version of the facts, Plaintiff did not exhaust the
administrative remedies available to him . . . regarding his
transport to ...