Opinion
NO. 5:19-CV-00420-TES-CHW
04-13-2020
STEVIE RAY THOMPSON, Plaintiff, v. MAJOR ALLEN EVERIDGE, et al., Defendants.
ORDER
Pending before the Court is the Amended Complaint of pro se Plaintiff Stevie Ray Thompson, a prisoner who is presently incarcerated at the Houston County CI in Perry, Georgia, seeking relief pursuant to 42 U.S.C. § 1983 (ECF No. 7). Plaintiff also seeks leave to proceed in forma pauperis and the appointment of counsel, and he has several additional motions pending. For the following reasons, Plaintiff's motions to proceed in forma pauperis (ECF Nos. 2, 8) and his motions to amend or correct (ECF Nos. 10, 16) are GRANTED. Plaintiff's motion for appointed counsel (ECF No. 5) is DENIED. It is further RECOMMENDED that Plaintiff's claims be DISMISSED without prejudice and that his motions for temporary restraining orders (ECF Nos. 11, 12) and his motion for judgment on the pleadings (ECF No. 15) be DENIED as moot.
Plaintiff may amend his Complaint once as a matter of course at this stage of the litigation. See Fed. R. Civ. P. 15(a). In the Eleventh Circuit, "[a]n amended complaint supersedes the initial complaint unless the amended complaint 'specifically refers to or adopts' the initial complaint." Schreane v. Middlebrooks, 522 F. App'x 845, 847-48 (11th Cir. 2013) (quoting Varnes v. Local 91, 674 F.2d 1365, 1370 n.6 (11th Cir. 1982)). As such, only Plaintiff's Amended Complaint has been considered in this case. See id.; cf. also Barber v. Krepp, 680 F. App'x 819, 821 n.2 (11th Cir. 2017) (declining to consider allegations in pro se petitioner's initial application for a writ of mandamus since initial application "would have been superseded by the amended application for a writ of mandamus" filed subsequently).
I. Motions to Proceed in Forma Pauperis
Plaintiff seeks leave to proceed in forma pauperis in this action. 28 U.S.C. § 1915 allows the district courts to authorize the commencement of a civil action without prepayment of the normally-required fees upon a showing that the plaintiff is indigent and financially unable to pay the filing fee. A prisoner seeking to proceed in forma pauperis ("IFP") under this section must provide the district court with both (1) an affidavit in support of his claim of indigence and (2) a certified copy of his prison "trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint." § 1915(a)(1)-(2).
In this case, Plaintiff's pauper's affidavit and trust account statement show that he is currently unable to prepay the Court's filing fee. Plaintiff's motions to proceed in forma pauperis (ECF Nos. 2, 8) are thus GRANTED and Plaintiff will be assessed an initial partial filing fee of $0.00. Plaintiff, however, is still obligated to pay the full balance of the filing fee, in installments, as set forth in § 1915(b) and explained below. It is accordingly requested that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee. The district court's filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if the Plaintiff's Complaint (or any part thereof) is dismissed prior to service.
A. Directions to Plaintiff's Custodian
It is hereby ORDERED that the warden of the institution wherein Plaintiff is incarcerated, or the sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the Clerk of this Court twenty percent (20%) of the preceding month's income credited to Plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act ("PLRA"), Plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is further ORDERED that collection of monthly payments from Plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.
B. Plaintiff's Obligations Upon Release
An individual's release from prison does not excuse his prior noncompliance with the provisions of the PLRA. In the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay those installments justified by the income to his prisoner trust account while he was still incarcerated. Collection from Plaintiff of any balance due on these payments by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit such payments. Plaintiff's Complaint is subject to dismissal if he has the ability to make such payments and fails to do so or if he otherwise fails to comply with the provisions of the PLRA.
II. Motion for Appointed Counsel
Plaintiff has also requested appointment of counsel in this case. Under 28 U.S.C. § 1915(e)(1), the Court "may request an attorney to represent any person unable to afford counsel." There is, however, "no absolute constitutional right to the appointment of counsel" in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claims and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989) (en banc). But "[t]he key" in determining whether appointed counsel is warranted "is whether the pro se litigant needs help in presenting the essential merits of his position to the court." Nelson v. McLaughlin, 608 F. App'x 904, 905 (11th Cir. 2015) (per curiam).
In this case, Plaintiff has filed his complaints on the standard § 1983 form. The Court is required to review Plaintiff's submissions to determine whether his allegations state a colorable legal claim. This process is routine in pro se prisoner actions and is thus not an "exceptional circumstance" justifying appointment of counsel. The facts as stated by Plaintiff are not complicated, the law governing Plaintiff's claims is neither novel nor complex, and Plaintiff has effectively communicated the substance of his claims to the Court. Nelson v. McLaughlin, 608 F. App'x 904, 905 (11th Cir. 2015) (per curiam) (holding that court did not abuse its discretion in denying appointed counsel where prisoner "articulated his claims for relief in his complaint and filed several responsive pleadings and motions before the district court in which he accurately cited the essential facts, legal arguments, and relevant law"). Plaintiff's motion for appointed counsel (ECF No. 5) is accordingly DENIED.
III. Motions to Amend or Correct
As noted above, Plaintiff filed an Amended Complaint in this action (ECF No. 7), which he was entitled to do as a matter of right. See Fed. R. Civ. P. 15(a)(1). Plaintiff has also filed a motion to change Defendant Jeremy Vaughlin's name to Jenny Vaughn (ECF No. 10) and a motion to modify the relief requested in this action to "a certain amount" (ECF No. 16). The Federal Rules of Civil Procedure provide that leave to amend should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). Plaintiff's motions to amend or correct his pleadings (ECF Nos. 10, 16) are therefore GRANTED.
IV. Preliminary Screening
A. Standard of Review
In accordance with the PLRA the district courts are obligated to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are "held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Id. (internal quotation marks omitted). Still, the Court must dismiss a prisoner complaint if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A(b).
A claim is frivolous if it "lacks an arguable basis either in law or in fact." Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on "indisputably meritless legal" theories and "claims whose factual contentions are clearly baseless." Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include "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)). The factual allegations in a complaint "must be enough to raise a right to relief above the speculative level" and cannot "merely create[] a suspicion [of] a legally cognizable right of action." Twombly, 550 U.S. at 555 (first alteration in original). In other words, the complaint must allege enough facts "to raise a reasonable expectation that discovery will reveal evidence" supporting a claim. Id. at 556. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
V. Factual Allegations
Plaintiff's claims arise from his treatment in the Houston County Jail. Am. Compl. 5, ECF No. 7. On June 29, 2019, Plaintiff was struck by a chair when another inmate attempted to hand the chair over the railing of the top tier to another inmate located on the bottom tier. See Attach. 1 to Am. Compl. 1, ECF No. 7-1. Although it initially appeared that Plaintiff sustained only two small cuts and a bruise as a result of this incident, id., Plaintiff contends that he was ultimately found to have pinched a nerve in his neck, causing him pain and other symptoms, see e.g., Attach. 5 to Am. Compl. 1, ECF No. 7-5. Plaintiff contends that Defendants violated his constitutional rights by failing to ensure his safety in the facility and/or by failing to provide him with adequate medical treatment for the injuries he suffered. See, e.g., Am. Compl. 5, ECF No. 1. As a result, he primarily seeks monetary damages and injunctive relief. Id. at 6.
VI. Plaintiff's Claims
A. Conditions-of-Confinement Claims
Plaintiff first alleges that Defendant Everidge, a major at the jail, should have ensured that all chairs in his dorm were affixed to the floors so that inmates could not move them and cause injury. This can be construed as an Eighth Amendment conditions-of-confinement claim. It is well established that even though "the Constitution does not mandate comfortable prisons," a prisoner's claim that the conditions of his confinement constitute cruel and unusual punishment may state a claim for relief under the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). To state a conditions-of-confinement claim, a prisoner must show that the deprivations he suffers are objectively and sufficiently "serious" or "extreme" so as to constitute a denial of the "minimal civilized measure of life's necessities." Thomas v. Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010); see also Brooks v. Warden, 800 F.3d 1295, 1303-04 (11th Cir. 2015). This standard is only met when the challenged conditions pose "an unreasonable risk of serious damage to [the prisoner's] future health or safety," Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (internal quotation marks omitted), or if society "considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk," Helling v. McKinney, 509 U.S. 25, 36 (1993). A prisoner must also show that prison officials had the requisite subjective state of mind, i.e., that the officials knew of the excessive risk to inmate health or safety and disregarded that risk. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Campbell v. Sikes, 169 F.3d 1353, 1364 (11th Cir. 1999).
In this case, Plaintiff has not alleged any facts suggesting that Defendant Everidge knew or should have known that the loose chairs posed an excessive risk to inmates' health or safety. At most, Plaintiff mentions that he has "seen other people fall out of them and get hurt as well as other accidents." Attach. 2 to Am. Compl. 1, ECF No. 7-2. Plaintiff does not provide any specific facts about any of these accidents or their frequency, explain how any such incident was attributable to the fact that the chairs were not affixed to the ground, or aver that Defendant Everidge was ever apprised of any of incidents. As such, Plaintiff has failed to show that Defendant Everidge acted with deliberate indifference. Plaintiff's conditions-of-confinement claims are therefore subject to dismissal.
B. Medical Treatment Claims
Plaintiff also claims that Defendant Vaughn, the "head" of Southern Correctional Medicine; Defendant Garrett, a nurse; and Defendant Everidge were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. "To show that a prison official acted with deliberate indifference to serious medical needs, a plaintiff must satisfy both an objective and a subjective inquiry." Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). A plaintiff must first "set forth evidence of an objectively serious medical need," i.e., "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id. (internal quotation marks and citations omitted). Plaintiff must also "prove that the prison official acted with an attitude of 'deliberate indifference' to that serious medical need." Id. In other words, prison officials must both "know of and then disregard an excessive risk to the prisoner." Dunn v. Martin, 178 F. App'x 876, 877 (11th Cir. 2006) (per curiam).
Plaintiff's initial injury on June 29, 2019 amounted to two small cuts and a bruised forearm. See Attach. 1 to Am. Compl. 1-2, ECF No. 7-1 (describing initial assessment of injuries as a "4 centimeter scratch on top of head and scratch to right forearm"). Plaintiff has not pleaded facts sufficient to show that these minor injuries constituted serious medical needs. But even assuming he had, Plaintiff has not shown that any Defendant acted with deliberate indifference to those medical needs. To establish deliberate indifference to a serious medical need, Plaintiff must show that a prison official had (1) subjective knowledge of a risk of serious harm and (2) disregarded that risk (3) by conduct that is more than gross negligence. See McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999); Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010). Plaintiff was seen twice on the same day for his initial injuries, given an icepack for his arm and/or head, provided with pain medication, and instructed to notify prison officials if he became dizzy. See Attach. 1 to Am. Compl. 1-2, ECF No. 7-1 (describing injury as a "4 centimeter scratch on top of head and scratch to right forearm"). Plaintiff thus simply cannot show that Defendants disregarded any risk of serious harm to Plaintiff with respect to his initial treatment.
When another prison official asked Defendant Garrett about Plaintiff's injuries a few hours after the incident, Defendant Garrett apparently realized he had overlooked Plaintiff's bruised forearm and Plaintiff was sent to medical for re-evaluation. Attach. 1 to Am. Compl. 1, ECF No. 7-1.
Likewise, assuming that Plaintiff's pinched nerve is a "serious medical need," Plaintiff has failed to show that Defendants were deliberately indifferent to that condition. According to Plaintiff's submissions to the Court, Plaintiff first began to file sick calls regarding headaches and back, neck, shoulder, facial, and dental pain on October 4 or October 5, 2019. Attach. 3 to Am. Compl. 1, ECF No. 7-3. Plaintiff was seen in medical on October 7, 2019 for dental and facial pain, and he was provided with Orajel and ibuprofen for pain. Id.
Plaintiff filed another sick call on October 7, 2019 because he did not believe his head or neck injuries and pain had been sufficiently addressed. Id. Medical officials responded on October 9, 2019 and scheduled Plaintiff a follow-up appointment with a physician for the "next available date." Id.; see also Attachs. 4, 7 to Am. Compl., ECF Nos. 7-4 and 7-7. Plaintiff was seen by the doctor on October 10, 2019; the doctor prescribed a muscle relaxer and scheduled Plaintiff for a follow-up appointment later that week. Id.
On October 22, 2019, Plaintiff complained that his pain medication was not working. He was seen the next day, x-rays were performed, and another follow-up was scheduled "to review x-ray findings and discuss further orders." Attach. 5 to Compl. 1, ECF No. 7-5.
In addition to these encounters with the jail's medical providers, Plaintiff's submissions to the Court also indicate that (1) he was given an MRI, which was apparently normal; (2) he has consistently received pain medication and is receiving testing to ensure that any long-term use of pain medication is not causing liver damage or other problems; (3) his medical providers have provided Plaintiff with a timeline addressing his anticipated future treatment; and (4) Defendant Everidge personally followed up with medical providers to ensure Plaintiff was receiving care. Attach. 2 to Exhs. 2, ECF No. 14-2.
Plaintiff alleges that he has been told that his injury "must" be treated by a specialist, and he thus posits that the course of treatment provided by prison medical officials is necessarily constitutionally inadequate. See Mot. TRO 3, ECF No. 12. As detailed above, however, Plaintiff's submissions demonstrate that Defendants have been responsive to Plaintiff's complaints and provided ample care. "For better or worse, prisoners aren't constitutionally entitled to their preferred treatment plan or to medical care that is great, or even very good." Keohane v. Fla. Dep't Corrs. Sec'y, 952 F.3d 1257, 1277 (11th Cir. 2020) (internal quotation marks omitted); see also id. at 1278 (finding it "inconceivable" that "the Constitution should be read to require prison officials to provide every convicted inmate . . . with doctors who have particularized experience (perhaps even a specialty) in dealing with his or her precise condition"). While Defendants may not be providing Plaintiff's preferred treatment on his preferred timeline, Plaintiff has failed to show that Defendants were deliberately indifferent to any serious medical need Plaintiff may have. Accordingly, Plaintiff's Eighth Amendment medical treatment claims should be dismissed.
VII. Conclusion
Based on the foregoing, Plaintiff's motions to proceed in forma pauperis (ECF Nos. 2, 8) and his motions to amend or correct (ECF Nos. 10, 16) are GRANTED. Plaintiff's motion for appointed counsel (ECF No. 5) is DENIED, however, and it is RECOMMENDED that Plaintiff's claims be DISMISSED without prejudice and that his motions for temporary restraining orders (ECF Nos. 11, 12) and his motion for judgment on the pleadings (ECF No. 15) be DENIED as moot.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable Tilman E. Self, III, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO ORDERED AND RECOMMENDED, this 13th day of April, 2020.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge