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Swilley v. Pope

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

August 26, 2019

MICHAEL LOVEE SWILLEY, Plaintiff,
v.
DR. FNU POPE, et al., Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff filed his 42 U.S.C. § 1983 Complaint to contest certain events allegedly occurring while he was incarcerated at the Wayne County Jail in Jesup, Georgia. Doc. 1.[1] On April 5, 2018, the Court granted Plaintiff leave to proceed in forma pauperis. Doc. 3. The Court now conducts the requisite screening of Plaintiff's Complaint and supplements. 28 U.S.C. §1915A. For the following reasons, I find that Plaintiff's deliberate indifference claim against Defendant Pope is not frivolous and ORDER the United States Marshals Service to serve a copy of Plaintiff's Complaint and this Order on Defendant Pope. However, I RECOMMEND the Court DISMISS the remainder of Plaintiff's Complaint for failure to state a claim. If the Court adopts this recommendation, I also RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis as to these dismissed claims.

         BACKGROUND

         In his Complaint, Plaintiff alleges that while in the Wayne County Jail, he suffered from two different medical conditions giving rise to his claims against Defendants. Doc. 1 at 12. First, he suffers from Crohn's disease, which he was initially diagnosed with during a previous stay at the Wayne County Jail in the 1990s. Id. at 4. Plaintiff was not being treated for this disease at the time he was most recently taken into custody. Id. at 12. Plaintiff claims, upon returning to the jail for his most recent incarceration, his disease flared up, but Defendant Pope refused to treat Plaintiff for the disease because she had no record of Plaintiff being diagnosed with that disease and he was not taking medication at the time that he was incarcerated. Id. at 5. Rather than giving Plaintiff treatment designed specifically for Crohn's disease, Dr. Pope prescribed anti-diarrhea medication which exacerbated Plaintiff's symptoms of “severe stomach cramps, fatigue, [diarrhea], and occasional blood in stool.” Id. Plaintiff received this medication approximately three weeks after seeing Defendant Pope and continues to suffer the above-described symptoms. Id. at 12. Plaintiff also alleges that Defendant Food Services “could be responsible [for this flare-up] because of a poor dietary plan (no fruit).” Id. at 4.

         The second medical condition that Plaintiff complains of is an abscessed tooth. Id. Plaintiff alleges that unidentified prison staff told him that he could not receive treatment for his tooth until he had been incarcerated for 90 days. Id.[2] Plaintiff claims that the lack of treatment made his mouth painfully swollen to the point that he took a sharp object and “burst it.” Id. at 5. Plaintiff also alleges he attempted to file grievance forms concerning the lack of treatment for his Crohn's disease and abscessed tooth . Id. Defendant Johnson told Plaintiff to file a grievance on the kiosk, and when he received no response, Plaintiff asked for a formal grievance form. Id. at 7. Sergeants Blackmon and Johnson then informed Plaintiff that there was no formal grievance form, only the kiosk form that he completed. Id. at 7-8. Plaintiff requests compensatory damages from all Defendants and requests that Defendant Food Services be required to add fruit to detainees' meals. Id. at 5.

         STANDARD OF REVIEW

         Plaintiff 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).

         The 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)).

         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 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)).

         In its 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 without counsel.”).

         DISCUSSION

         I. Official Capacity Claims

         Plaintiff indicates he is suing all Defendants in their official capacities and is also suing Dr. Pope in both her official and individual capacities. Doc. 1 at 2-3. As to Defendants Pope, Johnson, and Blackmon, those official capacity claims are barred, as Plaintiff seeks exclusively monetary damages. States are immune from private suits pursuant to the Eleventh Amendment and traditional principles of state sovereignty. Alden v. Maine, 527 U.S. 706, 712-13 (1999). Section 1983 does not abrogate the well-established immunities of a state from suit without its consent. Will v. Mich. Dep't of State Police, 491 U.S. 58, 67 (1989). Because a lawsuit against a state officer in his official capacity is “no different from a suit against the [s]tate itself, ” such defendant is immune from suit under § 1983. Id. at 71. Furthermore, it is well-settled law that sheriffs and members of the sheriff department acting in a law enforcement capacity are acting on behalf of the state. See Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003); Grech v. Clayton County, 335 F.3d 1326, 1347 (11th Cir. 2003) (“[T]he sheriff acts on behalf of the State in his function as a law enforcement officer . . .”). Here, the State of Georgia would be the real party in interest in a suit against Defendants in their official capacities as state officers, and, accordingly, the Eleventh Amendment makes them immune from suit. See Free v. Granger, 887 F.2d 1552, 1557 (11th Cir. 1989). Absent a waiver of that immunity, Plaintiff cannot sustain any constitutional claims for damages against Defendants in their official capacities, and the Court should DISMISS Plaintiff's monetary damages claims against Defendants Pope, Johnson, and Blackmon in their official capacities.

         II. Claims Against Defendant “Food Services”

         Regarding Plaintiff's claim against Defendant Food Services, Food Services is not a proper Defendant to this case. While deliberate indifference to medical needs is a proper claim under § 1983, Plaintiff cannot bring a claim against the Food Services Department. The department itself is not a “person” within the meaning of § 1983. And to the extent the Food Services Department is a component of the county jail, that claim is also barred. “While local governments qualify as ‘persons' to whom section 1983 applies, a county detention center, as a mere arm of such governments, is not generally considered a legal entity subject to suit.” Gardner v. Glynn Cty. Det. ...


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