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Hardy v. Georgia Department of Corrections

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

September 24, 2019

GEORGE W. HARDY, Plaintiff,


          J. Randall Hall, Judge

         Before 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 PART.

         I. BACKGROUND

         Defendants 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.[1] (Id. at Prayer for Relief.)

         A. 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.)

         B. Amputation

         On June 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.[2] (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.)

         C. Personnel and Alleged Conduct

         Plaintiff 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.

         1. Edward Hale Burnside II, M.D. and Mary Gore, R.N. (GDCP)[3]

         Nurse 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.)

         2. Warden Bruce Chatman (GDCP)

         Plaintiff 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) at GDCP.

         3. Wardens Stan Shepard and Betty Lee McGrew (ASMP)

         While 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 .)

         Additionally, 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.)

         Finally, Plaintiff makes the same allegations against Wardens Shepard and McGrew as those made against Warden Chatman. (Id. ¶¶ 60, 61, 64, 79, 87, 89.)

         4. ASMP Medical Personnel[4]

         Plaintiff 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.)

         5. All Individual Defendants

         Plaintiff 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.)

         Pursuant 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.


         In 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).

         "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, [5] 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. 1993).


         The 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.

         A. Section 1983 Deliberate Indifference to Serious Medical Need -Count I

          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.)

         1. Eleventh Amendment Immunity

         Plaintiff 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 ...

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