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McClure v. A. Hyers

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

June 12, 2019

CHAD MCCLURE, Plaintiff,
v.
A. HYERS; G. AUGUSTIN; M. AREBECK; D. HAERS; D. COX; A. JOHNSON; K. BELL; RICKY STONE; SHARON LEWIS; HILTON HALL, and D. STEWART, [1] Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff brought this 42 U.S.C. § 1983 action while incarcerated at Coffee Correctional Facility in Nicholls, Georgia, in order to challenge certain conditions of his confinement. Doc. 1. Plaintiff also submitted a motion to proceed in forma pauperis, which this Court granted. Docs. 2, 5. After the requisite frivolity review, I RECOMMEND the Court DISMISS Plaintiff's due process and equal protection claims. The Court, however, FINDS Plaintiff sets forth non-frivolous deliberate indifference claims against all Defendants. Accordingly, the Court DIRECTS the United States Marshal to serve Defendants with a copy of Plaintiff's Complaint, doc. 1, and this Order without prepayment of cost.

         BACKGROUND[2]

         Plaintiff filed this action on April 10, 2018. Doc. 1. Plaintiff then submitted an Amended Complaint, doc. 10, and seven letters.[3] Plaintiff alleges that Defendants Hall, Stone, Augustin, Stewart, Lewis, Arebeck, Hyers, Cox, Johnson, and Bell were deliberately indifferent to his “obvious medical needs” and delayed necessary treatment, violating the Eighth Amendment. Doc. 1 at 7-11; Doc. 10 at 1-11.

         While playing basketball at Coffee Correctional Facility on December 6, 2016, Plaintiff dislocated his right shoulder. Doc. 10 at 4. Plaintiff describes “hear[ing] his right shoulder[] ‘pop'” and experiencing a “tingling pain” which “extend[ed] down his right arm from his shoulder to his hand/fingers.” Id. At the time, he described his pain as a “10/10.” Id. Sometime later that day, MKyla Hand saw Plaintiff to evaluate the injury. Id. Plaintiff described his symptoms and pain to Ms. Hand, and Ms. Hand “noted Plaintiff's right shoulder present[ed] as . . . slumped[] and lower than Plaintiff's left shoulder.” Id. It was determined that Plaintiff's right shoulder was “out of socket” and his “range of motion was notably decreased.” Id. Ms. Hand spoke to McCleod, the on-duty nurse practitioner. Id. McCleod “noted the appointment was an urgent referral, ” prescribed 600 milligrams of ibuprofen for pain, and placed Plaintiff's arm in a sling. Id. Plaintiff remained in “constant pain, ” and he experienced difficulty moving his right arm and sleeping in the top bunk assigned to him. Id.

         On December 13, 2016, Plaintiff saw Dr. Justin Weiss. Id. Dr. Weiss performed an x-ray on Plaintiff. Id. Defendant Augustin, the on-site doctor at the prison, received a copy of the x-ray, and it was determined to be “inconclusive.” Id. Over the next several months, Plaintiff continued to experience pain and “difficulty sleeping and getting up/down from his top bunk.” Id.

         On May 20, 2017, Plaintiff “threw a wad of paper away in the dorm trash can” and dislocated his right shoulder for the second time. Id. Plaintiff filled out a Health Services Request Form (“HSRF”) that same day. Id. In that HSRF, Plaintiff stated that his right shoulder “redislocat[ed]” and described the continued pain and difficulty he experienced since his first injury. Id. Three days later, on May 23, 2017, Defendant Johnson treated Plaintiff “in sick call.” Id. Plaintiff was prescribed 600 milligrams of ibuprofen twice a day for 10 days. Id. Dr. Weiss performed another x-ray that day and provided the results to Defendant Augustin. Id. Plaintiff alleges that Defendant Augustin, using “the same boilerplate language as before, ” found the results “were, yet again, inconclusive[.]” Id. at 4-5.

         Though prison medical staff scheduled a follow-up appointment for Plaintiff on May 31, 2017, when Plaintiff arrived at the medical unit, he was told his follow-up appointment would be rescheduled. Id. at 5. Plaintiff then filed a HSRF on June 5, 2017 which described continued pain in his right shoulder. Id. Defendant Johnson replied and stated an appointment was scheduled. Id. Plaintiff had a “noted pending appointment and call-out dated June 7, 2017, ” but on that day, Plaintiff was not seen at “sick call.” Id. When Plaintiff arrived “at sick call, ” Officer Williams told Plaintiff that “his name was marked out[.]” Id. On June 13, 2017, Plaintiff filed Grievance Number 243994, complaining about his denied appointment and lack of medical care. Id. Defendant Stone responded, denying the grievance. Defendant Stewart and Defendant Lewis also denied Plaintiff's grievances or appeals related to his lack of medical care. Id.

         Plaintiff submitted another HSRF on June 29, 2017. Id. In that HSRF, Plaintiff inquired as to whether Defendant Augustin “had approved an MRI to be performed on [Plaintiff's] right shoulder.” Id. Defendant Cox responded to the HSRF on the same day, telling Plaintiff an “appointment [was] coming” and to “wait on call out.” Id. Plaintiff received a call out “for an NA/PA appointment” around a month later on July 25, 2017. Id. However, at that appointment, Plaintiff “was told that he had not asked for an MRI in June[.]” Id. Plaintiff “once again requested an MRI . . . be performed on his right shoulder.” Id.

         On August 22, 2017, Plaintiff “submitted another HSRF” asking whether Defendant Augustin scheduled an MRI for his right shoulder. Id. An individual named Nagy advised Plaintiff to submit another “sick call/HSRF.” Id. Plaintiff did so on August 25, 2017. This HSRF described his ongoing shoulder pain, explained that the ibuprofen did not relieve that pain, and that Plaintiff “was awaiting proper treatment.” Id. at 5-6. Defendant Johnson responded the same day and allowed Plaintiff to keep the ibuprofen on his person. Id. at 6.

         Plaintiff had a medical appointment on August 30, 2017. Id. At that appointment, Defendant Johnson told Plaintiff an MRI “would be scheduled.” Id. Defendant Johnson also observed that “Plaintiff continued to have a noticeable decrease [in] his range of motion of his right shoulder.” Id. After Defendants Johnson and Augustin consulted, Plaintiff received a 30-day prescription for naproxen with two refills. Id.

         The switch from ibuprofen to naproxen did not alleviate Plaintiff's pain. Id. Rather, on October 12, 2017, Plaintiff submitted another HSRF complaining of the continued pain in his right shoulder from the December 2016 and May 2017 dislocations. Id. That same day, Nagy responded and told Plaintiff “to fill out another HSRF.” Id. Plaintiff, as instructed, filled out another HSRF “noting the same complaints” on October 18, 2017. Id. On October 20, 2017, Defendant Bell responded and told Plaintiff a follow-up appointment was scheduled. Id.

         Defendant Bell saw Plaintiff for that follow-up appointment on October 20, 2017. Id. At that appointment, Plaintiff described the pain in his right shoulder as a “6/10.” Id. Plaintiff explained that the naproxen “was not working.” Id. Defendant Bell and Defendant Augustin consulted, and Defendant Bell told Plaintiff another follow-up appointment was scheduled. Id. That follow-up occurred on October 30, 2017. Id. The medical staff increased Plaintiff's naproxen prescription, though Plaintiff told staff that naproxen did not alleviate his pain.[4] Plaintiff filed Grievance Number 254115 the same day as his follow-up appointment. Id. Defendant Stone denied this grievance on November 13, 2017, stating that the “only solution” to Plaintiff's pain was to increase his medication. Id. “Plaintiff still had not received an MRI at this point, despite numerous documented requests.” Id.

         On November 27, 2017, Plaintiff submitted another HSRF which “reiterate[ed]” details about the shoulder pain he experienced and explained that the shoulder pain had spread to his back. Id. On November 30, 2017, Defendant Hyers responded and told Plaintiff to wait for a “call out” for a follow-up appointment. Id. Plaintiff “was seen by an NA/PA” on December 12, 2017. Id. At that appointment, Plaintiff described his shoulder pain and again requested an MRI. Id. He also asked about receiving physical therapy. Id.

         Plaintiff filed this action on April 10, 2018 and submitted an Amended Complaint around September 11, 2018. Docs. 1, 10. Plaintiff alleges, in both his original and Amended Complaints, that he “still experiences continued pain in his right shoulder” and that prison medical staff refuses to provide “an MRI, the opinion of an orthopedic doctor, and/or physical therapy for his . . . medical condition.” Doc. 10 at 7. Plaintiff contends that this “continued delay in treatment[] has and will continue . . . to cause long-term damage to Plaintiff's right shoulder.” Id. Though Defendants have been “aware of [Plaintiff's] obvious medical condition[] since it occurred, ” Defendants “continue to ignore it” and have not provided Plaintiff an “adequate diagnosis, treatment, or therapy.” Id.

         Plaintiff alleges the denial of medical care he experienced is part of a “systemic, accepted practice . . . driven by [the] financial goals [of] CoreCivic ([the] owner of Coffee Corr[ectional] Facility) and Correct Care Solutions[.]” Id. at 7. He writes that Defendants Hall, Stone, Lewis, Stewart, and Augustin, as final policymakers at Coffee Correctional Facility, “purposefully and with deliberate indifference, directly or indirectly, den[ied] adequate medical treatment [to] Plaintiff, by creating or conspiring with others . . . to create and enforce written and unwritten policies, customs[, ] or practices which allowed or gave tacit authorization to all his subordinates . . . to intentionally deny Plaintiff's obvious medical issues . . . .” Id. at 8-11. He also alleges that their subordinates (Defendants Arebeck, Hyers, Cox, Johnson, and Bell) violated his constitutional rights through actions taken pursuant to these “unwritten policies, customs[, ] and practices[.]” Id.

         As relief, Plaintiff requests a declaratory judgment, an injunction to “force” Defendants to treat his injury, as well as $15, 000 in compensatory damages and $30, 000 in punitive damages “against each [D]efendant, jointly and [severally, ]” recovery of court costs, and “all other relief this honorable Court deems just, proper, and equitable.” Id. at 12.

         STANDARD OF REVIEW

         Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all his assets and shows an inability to pay the filing fee and also includes a statement of the nature of the action which shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii).

         When reviewing a complaint on an application to proceed in forma pauperis, the Court is guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed.R.Civ.P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set of circumstances). Further, a claim is frivolous under § 1915(e)(2)(B)(i) “if it is ‘without arguable merit either in law or fact.'” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

         Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Rundle, 393 Fed.Appx. 675, 678 (11th Cir. 2010). Under that standard, this Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the ...


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