Opinion
NO. 5:20-cv-00023-TES-CHW
07-28-2020
BILL EUGENE BOWERS, SR., Plaintiff, v. NURSE CHARLES COLEMAN, et al., Defendants.
ORDER AND RECOMMENDATION
Plaintiff Bill Eugene Bowers, Sr., a prisoner currently confined at the Johnson State Prison in Wrightsville, Georgia, has filed a pro se civil rights complaint seeking relief pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has also filed a motion for leave to proceed in forma pauperis (ECF No. 2) and a motion to preserve evidence (ECF No. 5). For the following reasons, Plaintiff's motion to proceed in forma pauperis is GRANTED, his motion for the preservation of evidence (ECF No. 5) is DENIED, and Plaintiff's medical treatment claims against Defendants Coleman and Newman shall proceed for further factual development. It is RECOMMENDED, however, that Plaintiff's remaining claims be DISMISSED without prejudice.
I. Motion to Proceed in Forma Pauperis
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).
The undersigned has reviewed Plaintiff's Motions to Proceed in forma pauperis and, based on his submissions, finds that Plaintiff's spendable balance is $0.00 and he is therefore presently unable to pre-pay any portion of the filing fee. The Court thus GRANTS Plaintiff's motion and assesses an initial partial filing fee of $0.00. Plaintiff is still obligated to pay the full $350.00 filing fee, in installments, as set forth in § 1915(b) and explained below. 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. 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.
A. Directions to Plaintiff's Custodian
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, shall 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 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. Preliminary Screening
A. Standard of Review
The PLRA obligates the district courts 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). Screening is also required under 28 U.S.C. § 1915(e) when the plaintiff is proceeding IFP. Both statutes apply in this case, and the standard of review is the same. 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).
B. Factual Allegations
Plaintiff's claims arise from his previous incarceration at the Riverbend Correctional Facility in Milledgeville, Georgia. See Compl. 4, ECF No. 1. According to the Complaint, Plaintiff was eating lunch on July 12, 2018, when he "started having problems holding [his] spoon." Id. Plaintiff went to medical where he was seen by nurses Coleman and Bowers, who administered an EKG, checked Plaintiff's blood pressure (which was high), and placed Plaintiff in an isolation cell for 2-3 hours for observation because Defendant Coleman told Plaintiff he was "3 out of 5 for a possible stroke." Id. Plaintiff was then returned to his cell. See id.
Plaintiff has not named nurse Bowers as a defendant in this action.
On July 13, 2018, Plaintiff returned to medical because he was experiencing left side paralysis. Compl. 4, ECF No. 1. Defendant Coleman completed a medical request for Plaintiff and placed him in a holding cell for observation for three days. Id. When Plaintiff attempted to receive further medical treatment for his symptoms, Defendant Newman told Plaintiff that he was a "liar" and sent him back to his dorm. Id.
On July 16, 2018, Plaintiff was seen by Sanval Rayapan, a physician assistant. Id. PA Rayapan examined Plaintiff and instructed the HSA Director, Defendant Bailey, "to call 911 this was an extream [sic] emergency." Compl. 4, ECF No. 1. Plaintiff also alleges that the paramedics who arrived with the ambulance "were shocked that the prison had waited so long to provide emergency care." Id. Plaintiff was transported to Navicent Health Baldwin and provided treatment. Id. at 4-5. Plaintiff alleges that he suffered from "permanent damage" as the result of the delay in care and contends that Defendants' failure to provide him with adequate medical care violated his constitutional rights, and as a result he primarily seeks monetary damages. See id. at 5.
C. Plaintiff's Claims
Plaintiff's Complaint alleges facts suggesting he intends to raise an Eighth Amendment claim concerning Defendants' deliberate indifference to his serious medical needs. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). "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, 320 F.3d at 1243. A plaintiff must first "set forth evidence of an objectively serious medical need" and 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). For purposes of this analysis, a "serious medical need" is "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." Farrow, 320 F.3d at 1243 (internal quotation marks omitted). A "serious medical need" may also exist when "a delay in treating the need worsens the condition." Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009).
Although it is not entirely clear from Plaintiff's Complaint whether he actually suffered a stroke in this case, when construed liberally it appears that he exhibited symptoms of a stroke or other similar serious medical need—including weakness, elevated blood pressure, and left-sided paralysis. Despite these symptoms, Defendants Coleman and Newman did little to provide him with care other than place him in observation, even after Plaintiff complained about continuing symptoms and "no improvement" for several days. Compl. 4, ECF No. 1. Plaintiff also contends that his condition worsened as it progressed, that other medical professionals were able to quickly assess the emergent nature of his condition, and that he suffered permanent damage as a result of the delay in treatment. See id. at 4-5. At this early stage, the Court therefore cannot say that Plaintiff's claims against Defendants Coleman and Newman are entirely frivolous, and they shall proceed for further factual development.
With respect to Plaintiff's claims against Defendants Bailey and Reeves—the prison's health services administrator and warden, respectively—the Court should reach a different conclusion. Plaintiff does not allege that either of these Defendants ever observed Plaintiff or had any reason to believe that the prison's medical staff was not providing him with medical care. It instead appears that Plaintiff is attempting to hold these Defendants liable in their supervisory capacities. It is well-settled in the Eleventh Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability. See, e.g., Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). Rather, supervisors can only be held liable under § 1983 if they personally participated in unconstitutional conduct or if there is a causal connection between their actions and the alleged constitutional violation. See, e.g., Hendrix v. Tucker, 535 F. App'x 803, 805 (11th Cir. 2013) (per curiam). A causal connection can be established if
(1) a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation and he fail[ed] to do so; (2) the supervisor's improper custom or policy le[d] to deliberate indifference to constitutional rights; or (3) facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.Id. "The standard by which a supervisor is held liable in her individual capacity for the actions of a subordinate is extremely rigorous." Id. (internal quotation marks omitted).
In this case, Plaintiff has not alleged that Defendants Bailey or Reeves personally participated in any conduct violating Plaintiff's constitutional rights, that a history of widespread abuse or improper custom or policy existed, or that Defendants directed their subordinates to act unlawfully or knew they were doing so and failed to stop them. Plaintiff has therefore failed to allege a basis for holding Defendants Bailey and Reeves liable in this case, and Plaintiff's claims against them are subject to dismissal as a result.
At most, Plaintiff alleges that PA Rayapan "instructed HSA Director Bailey to call 911," but nothing indicates that Defendant Bailey did not comply with this instruction. Compl. 4, ECF No. 1.
D. Motion to Preserve Evidence
Plaintiff has also filed a motion requesting that the Court "issue an order to Riverbend Correctional Facility . . . to preserve and maintain all video evidence pertaining to the case being brought before this Court[.]" Mot. Preserve Evid. 1, ECF No. 5. Plaintiff does not provide any specific facts showing that any relevant evidence in this case is in danger of being destroyed. Absent such facts, the Court's ability to impose sanctions for the destruction of evidence is sufficient to protect Plaintiff's interests in ensuring the preservation of any evidence necessary to his case. See, e.g., Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944-45 (11th Cir. 2005) (noting that the district court has "broad discretion . . . to impose sanctions" for discovery abuses, including the spoliation of evidence a party is under a duty to preserve). Plaintiff's motion to preserve evidence (ECF No. 5) is therefore DENIED at this time. If Plaintiff becomes aware of facts that show that relevant evidence may be destroyed or that such evidence has already been destroyed, Plaintiff may make an appropriate motion at that time.
III. Conclusion
For the foregoing reasons, Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is GRANTED, and Plaintiff's medical treatment claims against Defendants Coleman and Newman shall proceed for further factual development. Plaintiff's motion to preserve evidence (ECF No. 5) is DENIED, and it is RECOMMENDED that Plaintiff's claims against Defendants Bailey and Reeves be DISMISSED without prejudice.
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, 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.
ORDER FOR SERVICE
Having found that Plaintiff has made colorable constitutional violation claims against Defendants Coleman and Newman, it is accordingly ORDERED that service be made on Defendants and that they file an Answer, or such other response as may be appropriate under Rule 12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendants are reminded of the duty to avoid unnecessary service expenses, and of the possible imposition of expenses for failure to waive service pursuant to Rule 4(d).
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall keep the Clerk of this Court and all opposing attorneys and/or parties advised of their current address. Failure to promptly advise the Clerk of a change of address may result in the dismissal of a party's pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff is also advised that he must diligently prosecute his Complaint or face the possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. Defendants are similarly advised that they are expected to diligently defend all allegations made against them and to file timely dispositive motions as hereinafter directed. This matter will be set down for trial when the Court determines that discovery has been completed and that all motions have been disposed of or the time for filing dispositive motions has passed.
FILING AND SERVICE OF MOTIONS,
PLEADINGS, AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of Court. A party need not serve the opposing party by mail if the opposing party is represented by counsel. In such cases, any motions, pleadings, or correspondence shall be served electronically at the time of filing with the Court. If any party is not represented by counsel, however, it is the responsibility of each opposing party to serve copies of all motions, pleadings, and correspondence upon the unrepresented party and to attach to said original motions, pleadings, and correspondence filed with the Clerk of Court a certificate of service indicating who has been served and where (i.e., at what address), when service was made, and how service was accomplished.
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of the Defendant from whom discovery is sought by the Plaintiff. The Defendants shall not commence discovery until such time as an answer or dispositive motion has been filed. Once an answer or dispositive motion has been filed, the parties are authorized to seek discovery from one another as provided in the Federal Rules of Civil Procedure. The deposition of the Plaintiff, a state/county prisoner, may be taken at any time during the time period hereinafter set out provided prior arrangements are made with his custodian. Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil Procedure.
IT IS HEREBY ORDERED that discovery (including depositions and the service of written discovery requests) shall be completed within 90 days of the date of filing of an answer or dispositive motion by the Defendant (whichever comes first) unless an extension is otherwise granted by the court upon a showing of good cause therefor or a protective order is sought by the defendant and granted by the court. This 90-day period shall run separately as to Plaintiff and Defendants beginning on the date of filing of Defendants' answer or dispositive motion (whichever comes first). The scheduling of a trial may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline.
Discovery materials shall not be filed with the Clerk of Court. No party shall be required to respond to any discovery not directed to him/her or served upon him/her by the opposing counsel/party. The undersigned incorporates herein those parts of the Local Rules imposing the following limitations on discovery: except with written permission of the court first obtained, interrogatories may not exceed TWENTY-FIVE (25) to each party, requests for production of documents and things under Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to each party, and requests for admissions under Rule 36 of the Federal Rules of Civil Procedure may not exceed FIFTEEN (15) requests to each party. No party shall be required to respond to any such requests which exceed these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
The Court shall not consider requests for dismissal of or judgment in this action, absent the filing of a motion therefor accompanied by a brief/memorandum of law citing supporting authorities. Dispositive motions should be filed at the earliest time possible, but in any event no later than one hundred - twenty (120) days from when the discovery period begins unless otherwise directed by the Court.
SO ORDERED AND RECOMMENDED, this 28th day of July, 2020.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge