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Lonon v. Smith

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

March 19, 2019

CHINA LONON, Plaintiff,
v.
CINDY L. SMITH; PHIL HALL; NATHAN BROOKS; CATHY LEWIS; and DOCTOR CHENEY, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EFPS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an inmate at Telfair State Prison (“TSP”) in Helena, Georgia, filed his complaint pursuant to 42 U.S.C. § 1983. He is proceeding pro se and in forma pauperis (“IFP”). Because he is proceeding IFP, Plaintiff's complaint must be screened to protect potential defendants. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984); Al-Amin v. Donald, 165 Fed.Appx. 733, 736 (11th Cir. 2006) (per curiam).

         I. SCREENING THE COMPLAINT

         A. BACKGROUND

         Plaintiff names the following Defendants: (1) Cindy L. Smith, a representative of Georgia Department of Corrections (“DOC”), Southern Region Office of Professional Standards; (2) Phil Hall, retired TSP Warden; (3) Nathan Brooks, current TSP Warden; (4) Cathy Lewis, TSP Deputy Warden of Care and Treatment; and, (5) Dr. Cheney, TSP physician. (Doc. no. 1, pp. 1-3, 12.) Taking all of Plaintiff's allegations as true, as the Court must for purposes of the present screening, the facts are as follows.

         On January 3, 2018, Plaintiff fell off the top bunk in his cell at TSP, hit the concrete floor on his right arm, and had to go the hospital for treatment. (Id. at 16.) Upon examination, the hospital doctor diagnosed a “labral tear of the rotator cuff, ” put Plaintiff's arm in a sling, prescribed Percocet pain pills, and scheduled Plaintiff for a follow up visit. (Id. at 16-17.) Upon Plaintiff's return to TSP, he received a bottom bunk profile but was actually assigned to a top bunk, resulting in Plaintiff having to sleep on the floor for an undisclosed amount of time because he was unable to get on the top bunk with his injured shoulder. (Id. at 17.)

         Plaintiff told Defendant Hall and Defendant Lewis about his assignment to a top bunk despite having a bottom bunk profile on one occasion when the Warden and Deputy Warden, respectively, conducted morning inspection, but no adjustment to his bunk assignment occurred. (Id. at 17-18.) On March 21, 2018, Plaintiff filed a grievance requesting relocation to a “safer” housing unit because he could not properly defend himself with his shoulder injury. (Id. at 18.) Defendant Lewis moved Plaintiff to A-2 dormitory, but Plaintiff's top bunk assignment did not change. (Id. at 19.) Plaintiff talked to Defendant Brooks about his bunk assignment once during morning inspection, but nothing was done to re-assign Plaintiff to a bottom bunk. (Id.)

         Plaintiff continued to complain about the extreme pain from his rotator cuff injury and had surgery performed by a specialist in Reidsville, Georgia, who gave Plaintiff a shot and Percocet pills for pain. (Id. at 18.) However, upon Plaintiff's return to TSP, Defendant Cheney substituted Ibuprofen for the post-surgery pain treatment prescribed by the specialist, resulting in Plaintiff experiencing agonizing pain and sleepless nights. (Id. at 18-19, 22.) During a follow up visit to the specialist in Reidsville, Plaintiff commented on only receiving Ibuprofen, resulting in the specialist calling Defendant Cheney to request Plaintiff receive a stronger pain medication than Ibuprofen. (Id. at 20.) Defendant Cheney explained TSP does not provide inmates with Percocet and refused to give Plaintiff anything other than the ineffective Ibuprofen. (Id.) Defendant Cheney's refusal to provide adequate post-surgery pain treatment was based on a desire to save money, and providing only Ibuprofen for such severe post-surgery pain “amounted to no treatment at all.” (Id. at 22.)

         Plaintiff blames his fall and subsequent medical woes on inadequately sized bunk beds without guard rails which were mis-installed and do not have adequate rungs or a ladder to access the top bunk. (Id. at 12-13.) The structure of the bunks forces Plaintiff to choose between “either stepping on his roommate['s] mat to prop himself up, which in the prison context is viewed as a disrespect, ” or take a risk of “leaping up and down the top bunk without adequate support.” (Id. at 13.) When Plaintiff filed a grievance about the safety of the bunk beds, Defendant Smith performed a cursory review that did not adequately investigate the safety of the bunk beds or consider the disruption to Plaintiff's daily schedule caused by his rotator cuff surgery. (Id. at 20-21.) Moreover, Defendants Hall, Lewis, and Brooks should have made sure Plaintiff's bottom bunk profile was honored. (Id. at 21-22.)

         Plaintiff seeks a declaratory judgment that his Eighth Amendment rights were violated by (1) Defendants Hall, Lewis, and Brooks not exercising supervisory authority to make sure Plaintiff's bottom bunk profile was honored and make sure the bunk beds were safe, (2) Dr. Cheney not providing adequate post-surgery medical care, and (3) Defendant Smith, as a DOC representative, “endorsing the mis-installed bunks” with her response to Plaintiff's grievance, allowing a continuing threat to Plaintiff's safety. (Id. at 23-25.) Plaintiff also seeks compensatory and punitive damages from all Defendants in their individual and official capacities. (Id. at 2-3, 24-25.)

         B. DISCUSSION

         1. Legal Standard for Screening

         The complaint or any portion thereof may be dismissed if it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune to such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “Failure to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6).” Wilkerson v. H & S, Inc., 366 Fed.Appx. 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)).

         To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations in the complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. While Rule 8(a) of the Federal Rules of Civil Procedure does not require detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A complaint is insufficient if it “offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action, '” or if it “tenders ‘naked assertions' devoid of ‘further factual ...


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