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Lonon v. Cheney

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

July 2, 2019

CHINA LONON, Plaintiff,


          BRIAN K. EPPS JUDGE.

         Plaintiff, an inmate at Telfair State Prison (“TSP”) in Helena, Georgia, commenced the above-captioned civil rights case pro se and is proceeding in forma pauperis (“IFP”). Defendant filed a pre-answer motion to dismiss. (Doc. no. 13.) For the reasons set forth below, the Court REPORTS and RECOMMENDS Defendant's motion to dismiss be


         I. BACKGROUND

         A. Procedural History

         Plaintiff initially named five Defendants, and because he is proceeding IFP, the Court screened the complaint. (See doc. nos. 1, 7, 8.) Without objection from Plaintiff, United States District Judge Dudley H. Bowen, Jr., dismissed four Defendants and all official capacity claims for monetary damages. (Doc. no. 10.) The Court allowed an Eighth Amendment deliberate indifference claim to proceed against Defendant Cheney based on allegations of improper post-surgery medical treatment. (Doc. no. 8.)

         Defendant Cheney moves to dismiss, arguing Plaintiff failed to exhaust his administrative remedies prior to filing his complaint. (See doc. no. 13-1.) Plaintiff did not respond to the motion, and it is therefore unopposed pursuant to Local Rule 7.5.

         B. Complaint Allegations

         With respect to Defendant Cheney, Plaintiff alleges the following facts in his complaint signed on January 7, 2019. (Doc. no. 1, pp. 11, 25.) 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.) 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 seeks a declaratory judgment that his Eighth Amendment rights were violated by Defendant Cheney not providing adequate post-surgery medical care. (Id. at 23-25.) Plaintiff also seeks compensatory and punitive damages from Defendant Cheney. (Id. at 24-25.) As to the issue of exhaustion of administrative remedies, Plaintiff states he “has exhausted his administrative remedies with respect to all Defendants and all claims.” (Id. at 21; see also Id. at 6-8.)

         Defendant produced the affidavit Cynthia Stewart, the Chief Counselor at TSP. (See doc. no. 13-2 (Stewart Aff.).) The Chief Counselor's responsibilities include ensuring compliance with the Georgia Department of Corrections (“GDOC”) Grievance Standard Operating Procedure (“SOP”), coordinating investigations and responses to inmate grievances, and maintaining information and records regarding inmate grievances. (Id. ¶ 2.) The Chief Counselor identified five grievances Plaintiff filed at TSP, two of which related to medical care. (Id. ¶¶ 11, 16 & Ex. 2 (doc. no. 13-4).) Plaintiff filed three appeals, but he did not appeal either of the two denied grievances concerning his medical care. (Doc. no. 13-4, p. 2.) Of the two denied medical grievances, only one addresses the deliberate indifference claim raised against Defendant Cheney. (Stewart Aff. ¶ 16.)

         Specifically, Plaintiff filed Grievance Number 277770, wherein he alleged he had shoulder surgery on October 27, 2018, and had asked for pain medicine because the medicine he had been provided did not help with his pain. (Id. & Ex. 7 (doc. no. 13-9).) There is some confusion about the date the grievance was submitted because the institutional officer dated the grievance October 27, 2018 (the stated date of Plaintiff's surgery), but Plaintiff dated the grievance November 6, 2018. (Doc. no. 13-9, p. 2.) The Warden denied the grievance on December 11, 2018, and Plaintiff signed for receipt of the response on January 2, 2019. (Id. at 3.) The Warden's Response informed Plaintiff he had seven days to file an appeal, (id.), but as explained above, Plaintiff did not file an appeal of the denial. (Stewart Aff. ¶ 16; see also doc. no. 13-4, p. 2.)


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