United States District Court, S.D. Georgia, Augusta Division
GEORGE W. HARDY, Plaintiff,
GEORGIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
Randall Hall, Judge
the Court is Defendants' Partial Motion to Dismiss
Plaintiff's Second Amended Complaint. (Doc. 43.) For the
reasons contained herein, Defendants' motion is
GRANTED IN PART and DENIED IN
removed this matter from the Superior Court of Richmond
County, Georgia. (Doc. 1.) Subsequent to removal, Plaintiff
has amended his complaint twice, and his Second Amended
Complaint ("Complaint") is the operative pleading.
(Compl., Doc. 42.) The Complaint alleges a federal cause of
action pursuant to 42 U.S.C. § 1983 for deliberate
indifference to serious medical need (Count I) and state law
claims for professional negligence (Count II); negligence
(Count III); negligent infliction of emotional distress
(Count IV); and negligent hiring, retention, training, and
supervision (Count V). (Id. ¶¶ 41-91.)
Plaintiff further claims punitive damages. (Id. at
Prayer for Relief.)
Confinement and Medical History-
Plaintiff is confined at the Georgia Diagnostic and
Classification Prison ("GDCP") in Jackson, Georgia,
and was held at GDCP at all times except as otherwise stated.
(Id. ¶ 17.) As a result of his history with
cardiovascular disease and type II diabetes, Plaintiff is
prescribed Plavix, a medication intended to prevent the
formation of blood clots. (Id. ¶¶ 18, 19.)
In 2015, it was determined that Plaintiff required surgery to
remove a salivary gland. (Io\ ¶ 19.)
24, 2015, Plaintiff was transported to Augusta State Medical
Prison ("ASMP") to undergo the salivary gland
surgery. (Id. ¶ 22.) Prior to his surgery on
July 2, 2015, Plaintiff noticed numbness in his right foot
eventually leading to leg pain. (Id. ¶ 23.)
Over more than two weeks following surgery, Plaintiff
continued to experience leg pain and numbness. (Id.
¶¶ 24, 26-28, 30-33, 35.) After Plaintiff's
return to GDCP, medical staff examined Plaintiff and
discovered blood clots in his right leg and determined
Plaintiff had contracted gangrene. (Id. ¶ 36.)
Shortly thereafter, at the Atlanta Medical Center,
Plaintiff's leg was amputated six inches above the knee.
(Id. ¶ 37.)
Personnel and Alleged Conduct
alleges that the stoppage of his Plavix prescription
primarily caused the blood clots, gangrene, and amputation.
(See Id. ¶¶ 19-22, 25, 51-52, 55-56,
59-60, 70-71, 78, 87-88.) Plaintiff blames a host of entities
and personnel for the loss of his leg. (See id.
¶¶ 5-14.) For convenience, the Court discusses the
alleged conduct of the various personnel in turn.
Edward Hale Burnside II, M.D. and Mary Gore, R.N.
Gore ordered the suspension of Plaintiff's Plavix
prescription in anticipation of Plaintiff's salivary
gland surgery. (Id. ¶ 19.) Prior to his
transfer and surgery, Plaintiff expressed concerns about the
suspension of his prescription to Dr. Burnside. (Id.
¶ 20.) Dr. Burnside informed Plaintiff that he need not
worry and ASMP would tend to his issues. (Id.)
Plaintiff alleges that neither Nurse Gore nor Dr. Burnside
attempted to notify ASMP of Plaintiff's prescription.
(Id. ¶ 21.) Upon Plaintiff's post-operation
return to GDCP, Dr. Burnside discovered the blood clots and
diagnosed Plaintiff with gangrene. (Id. ¶ 36.)
Warden Bruce Chatman (GDCP)
alleges that Warden Chatman failed in his duties to supervise
personnel (id. ¶¶ 60, 61, 87, 89), train
personnel (id. ¶¶ 61, 89), hire personnel
(id. ¶¶ 61, 89), terminate personnel
(id. ¶¶ 61, 89), and promulgate and
enforce policies (id. ¶¶ 60, 63, 79, 87)
Wardens Stan Shepard and Betty Lee McGrew (ASMP)
under ASMP's care, Warden Shepard purportedly threatened
to relocate Plaintiff for yelling out in pain. (Id.
¶ 29.) Plaintiff asserts Warden Shepard's warning
impacted Plaintiff's treatment.
(Id. ¶ 62 .)
Plaintiff expressed his distress to Warden McGrew on three
occasions. (Id. ¶¶ 24, 26, 29.) Plaintiff
states that Warden McGrew was aware of Plaintiff s medical
history, his prescription for Plavix, and the subsequent
suspension of that prescription. (Id. ¶ 25.)
Plaintiff makes the same allegations against Wardens Shepard
and McGrew as those made against Warden Chatman.
(Id. ¶¶ 60, 61, 64, 79, 87, 89.)
ASMP Medical Personnel
alleges that upon arriving at ASMP, he informed Dr. Kimberly
Fountain of the fact that he was no longer taking Plavix, and
his fears were ignored. (Id. ¶
22.) Further, Plaintiff asserts that throughout his time at
ASMP, the tending medical staff was aware of Plaintiff's
medical history, his prescription for Plavix, and the
subsequent suspension of that prescription. (Id.
¶ 25.) Plaintiff notified ASMP medical staff of his
numbness and pain on multiple occasions. (Id.
¶¶ 23-24, 26-33.) In response, ASMP medical staff
provided Plaintiff Percocet to assist with the pain
(id. ¶¶ 31-32) and warm compresses
(id. ¶¶ 26-27). ASMP medical staff
externally examined Plaintiff's leg finding no problems.
(Id. ¶ 33.) The treating staff at ASMP did not
consult with other medical providers or perform scans of the
leg. (Id. ¶¶ 26, 34.)
All Individual Defendants
contends that throughout Plaintiff's treatment, the
Individual Defendants we're aware that Plaintiff was
prescribed Plavix for his history of cardiovascular and
clotting issues. (Compl., ¶ 51.) Plaintiff continues
that the Individual Defendants knew Plaintiff ceased taking
Plavix prior to his surgery and refused to resume his Plavix
treatment following his surgery notwithstanding his numerous
complaints. (Id. ¶¶ 51, 53.) Finally,
despite the Individual Defendants' knowledge of Plaintiff
s medical and medication history, awareness that Plaintiff s
medication was suspended, and receipt of numerous complaints
from Plaintiff regarding his discomfort, the Individual
Defendants deprived Plaintiff of the medication and care for
a possible clotting issue. (Id. ¶¶ 51-53.)
to Federal Rule of Civil Procedure 12(b)(6) - failure to
state a claim upon which relief can be granted - Defendant
moves for partial dismissal of the Complaint on a number of
grounds. The Court addresses the Parties' competing
positions regarding dismissal herein.
MOTION TO DISMISS STANDARD
considering a motion to dismiss under Rule 12(b)(6), the
Court tests the legal sufficiency of the Complaint.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
overruled on other grounds by Davis v. Scherer, 468
U.S. 183 (1984). Pursuant to Federal Rule of Civil Procedure
8(a)(2), a complaint must contain a "short and plain
statement of the claim showing that the pleader is entitled
to relief' to give the defendant fair notice of both the
claim and the supporting grounds. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Although
"detailed factual allegations" are not required,
Rule 8 "demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombley, 550 U.S. at 555).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true,  to 'state a
claim to relief that is plausible on its face.'"
Id. (quoting Twombly, 550 U.S. at 570). The
plaintiff must plead "factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct." Id. "The
plausibility standard is not akin to a probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Id. A plaintiff's pleading obligation
"requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555.
"Nor does a complaint suffice if it tenders 'naked
assertions' devoid of further factual
enhancement.'" Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557). Furthermore,
"the court may dismiss a complaint pursuant to [Rule
12(b) (6)] when, on the basis of a dispositive issue of law,
no' construction of the factual allegations will support
the cause of action." Marshall Cty. Bd. of Educ. v.
Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.
Court begins with Plaintiff's federal claim - a violation
of 42 U.S.C. § 1983 for deliberate indifference to
serious medical need as protected by the Eighth Amendment of
the United States Constitution.
Section 1983 Deliberate Indifference to Serious Medical Need
Defendants argue that Plaintiff's Section 1983 claims
should be dismissed as to all Defendants because (1) the
Eleventh Amendment grants immunity to the Georgia Department
of Corrections ("GDC"), the Board of Regents of the
University System of Georgia ("BOR"), and the
Individual Defendants in their official capacities; (2)
Plaintiff fails to state a claim for a Section 1983
violation; and (3) Defendants are entitled to qualified
immunity in their individual capacities. (Br. Supp. Partial
Mot. to Dismiss, Doc. 43-1, at 5-23.)
Eleventh Amendment Immunity
brings the present action against two government agencies and
the Individual Defendants in both their official and
individual capacities. Defendants argue that Eleventh
Amendment immunity bars Plaintiff's Section 1983 claims
against state agencies and the Individual Defendants in their
official capacities. (Id. at 5.) Plaintiff does not
dispute that, generally, he may only assert a Section 1983
claim against the Individual Defendants in their individual
capacities. (Opp'n to Partial Mot. to Dismiss, Doc. 45,
at 5-6.) Instead, Plaintiff argues that Defendants are not
entitled to Eleventh Amendment protection for two reasons:
(1) Plaintiff's Complaint asserts both federal and state
law claims, and (2) The present action was initially filed in
state court and removed to federal court. (Id.) The