Opinion
5:21-cv-215 (TES) (CHW)
12-07-2021
EDDIE JAMES KING, Plaintiff, v. DOCTOR AIKENS, et al., Defendants.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
ORDER AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge.
In this Section 1983 action, Plaintiff Eddie James King, a prisoner already blind in his right eye, sues over the allegedly deficient medical treatment provided in relation to his left eye. Plaintiff's allegations to date suggest that vision in his left eye is also deteriorating due either to glaucoma or a detached retina.
Although the Court allowed Plaintiff to proceed on an Eighth Amendment claim of deliberate indifference, the Eighth Amendment does not proscribe mere medical malpractice. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner”). Rather, to prevail in this action, Plaintiff must demonstrate that the Defendants knew of but disregarded an excessive risk to Plaintiff's health. Farmer v. Brennan, 511 U.S. 825, 837 (1994). A “simple difference in medical opinion” does not meet this standard. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).
In pending motions before the Court, Plaintiff now moves (1) to amend his complaint (Doc. 19), and (2) for the Court to order that Plaintiff receive a “thorough exam” or a “second opinion” (Doc. 20).
Plaintiff's motion to amend (Doc. 19) is DENIED because the motion advances no new, material allegations. The motion does mention a new eye-drop medication, latanoprost, but this new medication offers no basis either to add new claims or to alter Plaintiff's current theory of liability for his existing claims. Furthermore, Plaintiff is ADVISED that any future proposed amendments should set out, in a single, controlling document, all of Plaintiff's claims and supporting factual allegations. Varnes v. Local 91, Glass Bottle Blowers Assoc. of U.S. and Canada, 674 F.2d 1365, 1370 n.6 (11th Cir. 1982) (“As a general rule, an amended complaint supersedes and replaces the original complaint”).
Additionally, it is RECOMMENDED that Plaintiff's motion for a Court order, construed herein as a request for preliminary injunctive relief, be DENIED. Again, even if Plaintiff were to receive a second medical opinion advising a different course of treatment, that second opinion would not serve to support Plaintiff's Eighth Amendment claim of deliberate indifference. Moreover, Plaintiff has failed to address the factors relevant to the preliminary injunction analysis, and there is no basis in the present, undeveloped record for the Court to presume that Plaintiff is receiving constitutionally deficient medical care. See Harris v. Thigpen, 941 F.2d 1495, 1507 (11th Cir. 1991) (“Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments”).
Those factors are: “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Four Seasons Hotels and Resorts, B.V., v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003).
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED and RECOMMENDED.