United States District Court, S.D. Georgia, Waycross Division
JAMAL E. COLLINS, Plaintiff,
THOMAS FERRELL; and ELIZABETH MARTYN, Defendants.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
currently incarcerated at Ware State Prison in Waycross,
Georgia, filed this 42 U.S.C. § 1983 Complaint to
contest allegedly deficient medical treatment he received at
that facility. Plaintiff also filed a Motion to Amend his
Complaint and a Motion for Default Judgment. Docs. 8, 21. The
Court now conducts the statutorily required screening of
Plaintiff's Complaint. 28 U.S.C. § 1915A. For the
following reasons, I find that Plaintiff states non-frivolous
deliberate indifference claims against Defendants Ferrell and
Martyn and DIRECT the United States Marshal
to serve a copy of Plaintiff's Complaint and this Order
on Defendants. I RECOMMEND the Court
DISMISS Plaintiff's monetary damages
claims against Defendants in their official capacities,
DENY Plaintiff's Motion for a
preliminary injunction, and DENY Plaintiff
in forma pauperis status on appeal as to any
dismissed claims. I also DENY
Plaintiff's Motion to Amend, which the Court construes as
a motion under Rule 21 of the Federal Rules of Civil
Procedure, and DENY Plaintiff's Motion
for Default Judgement.
September 20, 2018, Plaintiff filed a Complaint in this
Court, alleging that he received deficient medical care
following a surgery on his left leg. Doc. 1. Specifically,
Plaintiff alleges that, on June 6, 2017, Dr. Mark Winchell
performed surgery on Plaintiff's left patella at Georgia
State Prison. Id at 7. Following the surgery, Dr.
Winchell prescribed Plaintiff Tylenol #3 for pain management.
Id. On June 8, 2017, Plaintiff returned to Ware
State Prison, where he was normally housed. Id.
Approximately one month later, Defendant Ferrell lowered the
dosage of Plaintiff's Tylenol prescription, and Plaintiff
then experienced pain. Id. at 7. When Plaintiff
asked Defendant Ferrell to return him to his normal dosage,
Defendant refused. Id.
Ferrell then sent Plaintiff to Augusta State Medical Prison
to receive pain management treatment, and Dr. Martin
prescribed Plaintiff a topical cream and continued
Plaintiff's prescription of Tylenol #3 before Plaintiff
returned to Ware State Prison. Id. at 9. On July 27,
2017, 17 days after Plaintiff's Tylenol #3 prescription
was continued, Defendant Ferrell discontinued Plaintiff's
access to that medication. Id. Five days later,
Plaintiff returned to Georgia State Prison to see Dr.
Winchell, who prescribed him Tylenol #3 and naproxen.
Id. When Plaintiff returned to Ware State Prison,
Defendant Ferrell ordered only naproxen for Plaintiff and
intentionally did not order Tylenol #3. Id. at 9-10.
August 7, 2017, Defendant Ferrell called Plaintiff into his
office and said he “was tired of hearing about all of
this pain nonsense.” Id. at 9. Defendant
Ferrell then confiscated Plaintiff's cane. Id.
at 10. That same day, Plaintiff filed a grievance regarding
the confiscation of his cane. Id. at 11. Defendant
Ferrell learned of Plaintiff's grievance and then
confiscated Plaintiff's wheelchair, after which Plaintiff
filed another grievance. Id. Because Plaintiff had
no wheelchair or cane, he “felt great pains and noticed
that blood was trapped within the incision of his left
continued to experience pain until November 14, 2017, when
Defendant Ferrell sent Plaintiff to see Dr. Winchell, who
gave Plaintiff an injection for his pain. Id. at 12.
Dr. Winchell also continued Plaintiff's prescription of
Tylenol #3 and naproxen, and Defendant Ferrell again ordered
only naproxen for Plaintiff. Id. Plaintiff then
filed another grievance, and on February 13, 2018, received
another injection from Dr. Winchell for pain management.
Winchell subsequently ordered an MRI on Plaintiff's knee,
which revealed a tear in the surgical graft. Id. at
13. Plaintiff then had his second knee surgery on July 31,
2018, after which Dr. Winchell ordered that Plaintiff's
stitches be removed in 10 days and Plaintiff be given Tylenol
#3. Id. On August 8, 2018, six days after Plaintiff
returned to Ware State Prison, Defendant Ferrell discontinued
Plaintiff's pain medication. Id. One week later,
Plaintiff asked Defendant Martyn, a nurse practitioner, to
remove Plaintiff's stitches. Id. Defendant
Martyn declined to do so, stating that Dr. Winchell liked to
remove his own stitches. Id.
two weeks after his visit with Defendant Martyn, Plaintiff
returned to see Dr. Winchell. Id. Dr. Winchell was
“outraged” that Plaintiff's stitches had not
been removed and had a nurse remove Plaintiff's stitches.
Id. at 15. By this point, Plaintiff's stitches
were “buried beneath layers of old hard scabs.”
Id. Dr. Winchell also prescribed Tylenol #3 to
Plaintiff, but Plaintiff had not received that medication as
of the day that he filed his Complaint. Id.
wishes to assert Eighth Amendment deliberate indifference
claims against Defendants Ferrell and Martyn, claiming their
actions caused him “pain, suffering, physical injury
and emotional distress.” Id. at 17. Plaintiff
requests declaratory and injunctive relief ordering Dr.
Ferrell to provide him his prescribed medication, as well as
compensatory and punitive damages. Id. at 17-18.
to filing his Complaint, Plaintiff filed a Motion to Amend
Complaint. Doc. 8. Plaintiff also filed a Motion for Default
Judgment. Doc. 21.
brings this action in forma pauperis. Pursuant to 28
U.S.C. § 1915A, the Court must review a complaint in
which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or
any portion thereof, that is frivolous, malicious, fails to
state a claim upon which relief may be granted, or which
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
Court looks to the instructions for pleading contained in the
Federal Rules of Civil Procedure when reviewing a Complaint
on an application to proceed in forma pauperis.
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)).
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 unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys. . .
.”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff's
unrepresented status will not excuse mistakes regarding
procedural rules. McNeil v. United States, 508 U.S.
106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed