United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS JUDGE.
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
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.)
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
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.)
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.)
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.)
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. ¶
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.
DEFENDANT'S MOTION TO DISMISS SHOULD BE GRANTED BECAUSE
PLAINTIFF FAILED TO EXHAUST HIS ADMINISTRATIVE ...