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Greer v. Aikens

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

February 11, 2019

BRUCE MONROE GREER, Plaintiff,
v.
EDWARD L AIKENS, et al., Defendants.

          ORDER AND REPORT & RECOMMENDATION

          Stephen Hyles United States Magistrate Judge

         The 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.

         BACKGROUND

         I. Factual Allegations

         Plaintiff 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.

         Plaintiff 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 appropriately.” Id.

         Plaintiff 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.

         II. Procedural Background

         This 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).

         His 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.

         DISCUSSION

         I. Defendants' Motion to Dismiss

          A. Failure to Exhaust

         Defendants 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 ...


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