Coker v. Corizon Medical Services, Inc. et al

Filing 83

MEMORANDUM OPINION, as set out, re Magistrate Judge's Recommendation. The plaintiff's objections to the report and recommendation will be overruled, and the report and recommendation will be adopted and accepted by the court. Signed by Judge Sharon Lovelace Blackburn on 3/23/15. (CTS, )

FILED
2015 Mar-23 PM 03:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LARRY G. COKER,
Plaintiff,
v.
CORIZON MEDICAL SERVICES,
et al.,
Defendants.

)
)
)
)
) Case No. 5:12-cv-01028-SLB-TMP
)
)
)
)
)

MEMORANDUM OPINION
The magistrate judge filed his report and recommendation in this cause on
January 6, 2015 (Doc. # 68), recommending that the defendants’ motion for summary
judgment be granted and the federal law claims against them dismissed with prejudice.
He also recommended that the state law claims against the defendants be dismissed
without prejudice pursuant to 28 U.S.C. § 1367(c). Finally, he recommended that the
plaintiff’s motion for summary judgment be denied. Plaintiff filed his initial objections
to the report and recommendation on January 15, 2015 (Doc. # 73), followed by another
set of objections on February 4, 2015. (Doc. # 76). On February 20, 2015, plaintiff also
filed a Motion for Reconsideration of All Pleadings Filed at 69, 70, 72, 73, 74, and 76
(Doc. # 82), which the court also deems to be in the nature of objections to the report and
recommendation.
In his initial objections (Doc. # 73), the plaintiff objects to the magistrate judge’s

conclusion that, while he may have suffered negligence at the hands of various medicalcare providers, he has not shown the necessary deliberate indifference to his serious
medical needs to make a constitutional claim under the Eighth Amendment. He points
out that he suffered severe sepsis, shock, and acute renal failure following a prostate
biopsy in October 2010. He was hospitalized for eight days in intensive care, and even
after his return to the Limestone Correctional Facility, he remained in the infirmary for
two weeks, receiving antibiotic treatment.
Even so, the undisputed facts show that plaintiff underwent a prostate biopsy on
October 25, 2010, to determine if he had prostate cancer. He was prescribed and given
Cipro, an antibiotic, the day before, the day of, and day following the biopsy, but he was
not prescribed an antibiotic for a longer period following the test. Three weeks later, on
November 16, 2010, he was discovered unconscious in his cell. He was transported to a
free-world hospital and placed in the intensive care unit with a severe infection, believed
to be a consequence of the prostate biopsy.
Even though it is clear that plaintiff suffered a severe complication from the
biopsy, one that almost killed him, it also is clear that there is no evidence that any
medical professional involved in the biopsy or recovery was deliberately indifferent to his
medical needs.

As the magistrate judge pointed out, a claim under the Eighth

Amendment must go beyond “mere negligence,” it must involve deliberate indifference
to the serious medical need of the prisoner. While it might be argued that the defendants
2

were negligent in failing to administer antibiotics for a longer period of time following
the biopsy, it cannot be said that they were deliberately indifferent to the risk of infection
due to the biopsy. They gave the plaintiff a course of Cipro for three days, before,
during, and after the biopsy to minimize the known risk that an infection can occur
following a prostate biopsy. That the treatment with Cipro was not enough to prevent the
infection does not establish deliberate indifference by the defendants. Thus, the court
agrees with the magistrate judge that the evidence fails to establish a constitutional claim
for denial of medical care to the plaintiff. Insofar as defendants may have been negligent,
the court will adopt the magistrate judge’s recommendation that plaintiff’s state-law
claims of negligence be dismissed without prejudice so that he can pursue them in state
court if he chooses to do so.
Plaintiff also seems to argue that the court must appoint an attorney to represent
him and, further, an expert hematologist to provide expert testimony concerning his
medical care. This is a civil case; plaintiff has no constitutional right to the appointment
of counsel to assist him. The cases cited by the plaintiff in Doc. # 76, Lavender v.
Kearney, 206 Fed. Appx. 860, 864 (11th Cir 2006), and Bass v. Perrin, 170 F.3d 1312,
1320 (11th Cir 1999), do not hold that a prisoner has a right or entitlement to appointed
counsel in a civil matter. Rather, they both hold that prisoners have no such right or
entitlement, but that the court may, in its discretion, appoint counsel. Although the court
has the discretion to do so, this case does not necessitate appointment of counsel because
3

the evidence is relatively straightforward and undisputed, being reflected in the medical
records and plaintiff’s own testimony.
For these reasons, the plaintiff’s objections to the report and recommendation will
be overruled, and the report and recommendation will be adopted and accepted by the
court. Plaintiff’s Motion for Reconsideration, (doc. # 82), is due to be denied.
By separate order in accordance with this memorandum opinion, the court will deny
the plaintiff’s motion for summary judgment, and will grant the defendants’ motions and
dismiss with prejudice the plaintiff’s claims under federal law. The court also will dismiss
without prejudice the plaintiff’s claims under Alabama state law, pursuant to 28 U.S.C. §
1367(c). Finally, plaintiff’s Motion for Reconsideration will be denied.
DONE this 23rd day of March, 2015.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

4