United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
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.
filed this action on April 10, 2018. Doc. 1. Plaintiff then
submitted an Amended Complaint, doc. 10, and seven
letters. 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.
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.
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
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.
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.
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.
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.
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.
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
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. 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
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
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.”
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.
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.
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).
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.
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 ...