Johnson v. Whitman et al
MEMORANDUM OPINION and ORDER re: 27 motion to dismiss. Signed by Judge L Scott Coogler on 3/2/2015. (KAM, )
2015 Mar-02 PM 01:57
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JERRY WAYNE JOHNSON,
JAMES WHITMAN, et al.,
Memorandum of Opinion and Order
Plaintiff Jerry Wayne Johnson (“Johnson”) brought this action under 42 U.S.C.
§ 1983. Johnson alleges that Defendants violated his Eighth Amendment rights when
Defendants were deliberately indifferent in providing medical treatment for a broken
wrist Johnson suffered while incarcerated at the Winston County Jail. Johnson also
brings a state law claim for negligence. Before the Court is Defendants George A.
Lyrene, M.D. (“Lyrene”), Denise Cummings, (“Cummings”), Amber Thompson
(“Thompson”), and Adam Whitehead’s (“Whitehead”) motion to dismiss Johnson’s
complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil
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Procedure.1 (Doc. 27.) The issues have been fully briefed by the parties and are ripe
Johnson was incarcerated at the Winston County Jail (“Jail”) in the summer
of 2013. Defendant Lyrene was a physician employed by Correctional Managed Care
Consultants, LLC (“CMCC”), and served as director of the medical program at the
Jail. Defendants Cummings, Thompson, and Whitehead were also employed by
CMCC, and provided nursing services for Jail inmates.
On July 8, 2013, Johnson fractured his right wrist while an inmate at the Jail. On
July 12, 2013, Cummings examined Johnson’s wrist. She noted bruising and swelling,
and treated the wrist injury with an ice pack. After Johnson told Cummings that he
believed the wrist to be broken, Cummings indicated that she would refer Johnson to
another nurse the next day to see if he needed x-rays. On July 13, 2013, Thompson
examined Johnson’s wrist. Johnson indicated that he experienced pain when trying
to move the wrist, and Thompson prescribed naproxen and acetaminophen for pain.
Thompson discussed Johnson’s wrist with Dr. Lyrene, but no x-rays were ordered at
Defendants James Whitman and Rick Harris have not joined in this motion.
In ruling on a motion to dismiss, this Court must accept the plaintiff’s factual allegations
as true and construe them in his favor. See Baloco ex rel. Tapia v. Drummond Co., 640 F.3d 1338, 1345
(11th Cir. 2011) (citing Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010)).
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the time. On July 18, 2013, Thompson saw Johnson again for an unrelated medical
condition. Johnson’s injured wrist was not discussed during this visit.
On August 29, 2013, Lyrene personally examined Johnson’s wrist due to
Johnson’s continued complaints. Lyrene ordered x-rays to be taken. On September
11, 2013, Johnson was taken to an off-site hospital where he had his wrist x-rayed. On
September 18, 2013, Dr. Lyrene again examined Johnson’s wrist. Lyrene diagnosed
Johnson with a fractured wrist and indicated that he would discuss Johnson’s
condition with an orthopedist. Lyrene saw Johnson again in October 2013 for a leg
issue. During this visit, Lyrene noted that Johnson’s right wrist did not flex or grip
normally. However, Lyrene did not prescribe any additional treatment for the wrist
injury at that time.
On November 13, 2013, Johnson was again examined by Dr. Lyrene for his wrist
fracture. Johnson indicated that the wrist injury was still painful, and asked whether
surgery was an option. Lyrene told Johnson that, after reviewing the x-rays with the
orthopedist, he had determined that it was “too late” for surgery. Johnson’s fracture
ultimately healed in an malunion position. Johnson was released from the Jail in
March of 2014, and had surgery to repair the malunion in his right wrist in May of
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Johnson filed his complaint in this Court on April 16, 2014. Johnson amended
his complaint on October 29, 2014 to include claims against the Lyrene, Cummings,
Thompson, and Whitman. Johnson’s § 1983 claim is based on an alleged Eighth
Amendment violation, as Johnson asserts that Defendants were deliberately
indifferent to his medical needs. Johnson also brings a claim for
negligence/wantonness against Lyrene, Thompson, Cummings, and Whitehead.
Standard of Review
A pleading that states a claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). However, the facts alleged in the complaint must be specific enough that the
claim raised is “plausible.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible on its face.”) (internal
quotations omitted) (emphasis added). “To be plausible on its face, the claim must
contain enough facts that ‘allow the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Pouyeh v. Univ. of Ala. Dep’t of
Ophthamology, No. CV-12-BE-4198-S, 2014 WL 2740314, at *3 (N.D. Ala. June 16,
2014) (quoting Iqbal, 556 U.S. at 678) (alteration in original). Conclusory statements
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of law may “provide the framework of a complaint,” but the plaintiff is required to
support them with “factual allegations.” Iqbal, 556 U.S. at 679.
The process for evaluating the sufficiency of a complaint has two steps. This
Court “begin[s] by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. Conclusory statements
and recitations of a claim’s elements are thus disregarded for purposes of determining
whether a plaintiff is entitled to access discovery. See Randall v. Scott, 610 F.3d 701,
709 (11th Cir. 2010) (citing Iqbal, 556 U.S. at 687). Next, this Court “assume[s] [the]
veracity” of “well-pleaded factual allegations” and “determine[s] whether they
plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. A complaint’s
factual matter need not be detailed, but it “must . . . raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In reviewing the complaint, this Court “draw[s] on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679. Nonetheless, “[a] well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of [the facts alleged] is
improbable.” Twombly, 550 U.S. at 556. This Court considers only “the face of the
complaint and attachments thereto” in order to determine whether Plaintiff states a
claim for relief. Starship Enters. of Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d 1243,
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1252 n.13 (11th Cir. 2013). Generally, the complaint should include “enough
information regarding the material elements of a cause of action to support recovery
under some ‘viable legal theory.’” Am. Fed’n of Labor & Cong. of Indus. Orgs v. City
of Miami, Fla., 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr.
for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)).
Deliberate Indifference to a Serious Medical Need
The United States Supreme Court has held that it is only deliberate indifference
to serious medical needs that is actionable under 42 U.S.C. § 1983. See Estelle v.
Gamble, 429 U.S. 97, 105 (1976). To recover under this cause of action, a plaintiff
must establish (1) a serious medical condition; (2) prison officials’ deliberate
indifference to that condition; and (3) the prison officials’ personal participation in the
alleged constitutional violation, or some other means of establishing causation with
respect to each individual defendant. See Goebert v. Lee Cnty., 510 F.3d 1312, 1326
(11th Cir. 2007). Defendants do not dispute that a fractured wrist can be a “serious”
medical condition, leaving this Court to consider only whether the individual
Defendants’ alleged conduct amounts to deliberate indifference.
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Deliberate indifference can be shown in a variety of ways. As the Eleventh
Circuit Court of Appeals noted:
Our cases have consistently held that knowledge of the need for medical
care and an intentional refusal to provide that care constitutes deliberate
indifference. Medical treatment that is “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness” constitutes deliberate indifference.
Additionally, when the need for medical care is obvious, medical care
that is so cursory as to amount to no treatment at all may constitute
Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995) (internal citations omitted).
Furthermore, an official acts with deliberate indifference when he intentionally
delays providing an inmate with access to medical treatment, knowing that the inmate
has a life-threatening or urgent condition that would be exacerbated by the delay. See
Hill v. Dekalb Cnty. Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186–87 (11th Cir. 1994),
abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002). Delay in access to
medical treatment can violate the Eighth Amendment when it is “tantamount to
unnecessary and wanton infliction of pain.” Brown v. Hughes, 894 F.2d 1533, 1537
(11th Cir. 1990) (internal quotation marks and citations omitted).
However, mere negligence is insufficient to support a constitutional claim. See
Fiedler v. Bossard, 590 F.2d 105, 107 (5th Cir. 1979). Moreover, an accidental failure
to provide medical care, or negligent diagnosis or treatment of a medical condition,
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will not sustain a claim for an Eighth Amendment violation. See Ramos v. Lamm, 639
F.2d 559, 575 (10th Cir. 1980); see also Estelle, 429 U.S. at 106 (stating that “[m]edical
malpractice does not become a constitutional violation merely because the victim is
a prisoner”). Finally, a mere difference of opinion between inmate and medical staff
as to the type of treatment to be administered does not give rise to a cause of action
under the Eighth Amendment. See Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976);
see also Estelle, 429 U.S. at 106–08.
Johnson argues that Defendants acted with deliberate indifference when they
delayed ordering an x-ray on his wrist, and later when they denied Johnson surgery for
the injury. The complaint shows that medical staff examined Johnson’s wrist seven
times between July 12, 2013 and November 13, 2013. Upon first presenting his injured
wrist to medical staff, Johnson was given an ice pack for swelling and informed by
Cummings that another member of the medical staff would evaluate his wrist to
determine if x-rays were needed. The next day, Defendant Thompson examined his
wrist, noting pain upon motion and prescribing Johnson two different pain relievers.3
Thompson proceeded to confer with Dr. Lyrene about whether an x-ray was
While Johnson argues that the pain medication was administered for another medical
condition (arthritis), the facts as pled nonetheless show that Johnson was prescribed pain medication
following a medical examination during which Johnson complained about pain in his wrist.
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necessary. While Dr. Lyrene initially did not order an x-ray, he personally examined
Johnson’s wrist and had an x-ray promptly administered following Johnson’s
continued complaints of pain. After receiving the x-ray results, Dr. Lyrene conferred
with an orthopedic specialist concerning the proper course of treatment.
Put simply, the pleaded facts do not show that Johnson’s complaints about his
wrist were ignored by Defendants to the extent that their actions could be considered
to constitute deliberate indifference. While Johnson may take issue with the roughly
eight-week delay between when he first presented his wrist injury to medical staff and
when x-rays were ordered, Johnson nonetheless received medical treatment during
that time frame. Furthermore, Johnson has pled no facts—other than a conclusory
statement that “even a layperson” could tell that his wrist was broken—to suggest
that Defendants had subjective knowledge that an x-ray was needed.4 See Johnson v.
Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (stating that a defendant must have actual
knowledge of a serious condition, rather than just knowledge of that condition’s
symptoms, and ignore the risk of that condition to support a claim for deliberate
Furthermore, while Johnson has alleged that he told Cummings during his first examination
that he believed his hand to be broken, he also alleges that Cummings immediately referred Johnson
to another member of the medical staff to determine whether an x-ray was needed. In other words,
Johnson’s own allegations show that Cummings responded promptly to his complaint, and the mere
fact that Cummings may have subjective knowledge cannot be used to impute knowledge to the other
Defendants. See Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1234 (11th Cir. 2010).
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indifference). Thus, this case can be easily distinguished from cases where medical
officials had subjective knowledge of the plaintiff’s serious medical condition, and
nonetheless denied plaintiff access to diagnostic tests that even the medical staff
believed to be necessary for proper treatment of the plaintiff’s condition. Cf. Antaca
v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)(finding that a plaintiff
had sufficiently alleged a deliberate indifference claim when plaintiff pled facts
showing that defendants knew that a medical diagnostic test was necessary, but
refused to administer it despite plaintiff’s repeated requests).
Johnson further argues that his wrist injury should have been treated with
surgery. He asserts that, had the broken wrist been surgically reset, it likely would not
have healed in a malunion. Such an assertion might serve as the basis for a negligence
or medical malpractice claim, but it will not support a claim for an Eighth Amendment
violation. See Farmer v. Brennan, 511 U.S. 825, 838 (1994) (stating that “an official’s
failure to alleviate a significant risk that he should have perceived but did not, while
no cause for commendation, cannot under our cases be condemned as the infliction
of punishment [i.e., deliberate indifference to a serious medical need]”). Furthermore,
the fact that Johnson would have preferred a specific course of treatment does not
state a constitutional claim. See Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)
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(stating that “a simple difference of medical in medical opinion between the prison’s
medical staff and the inmate as to the latter’s diagnosis [does not] support a claim of
cruel and unusual punishment”). Indeed, this Court has previously decided, albeit at
the summary judgment stage, that a prisoner’s preference for surgical treatment
cannot alone sustain a deliberate indifference claim. See Maxwell v. CHS Prison Med.,
No. 4:11-cv-03631-LSC-RRA, 2013 WL 1180380 (N.D. Ala. Mar. 19, 2013) (deciding
that prison medical staff were not deliberately indifferent when they employed a
conservative treatment regimen of pain medication and continued observation for a
patient’s bulging back discs and shoulder pain, despite the plaintiff’s insistence on
having surgical treatment instead).
Finally, with the exception of Dr. Lyrene, Johnson fails to even allege significant
personal involvement on behalf of any of the Defendants. See Hale v. Tallapoosa Cnty.,
50 F.3d 1579, 1582 (11th Cir. 1995) (stating in the context of a deliberate indifference
claim that plaintiff was “required to show that [defendants] were personally involved
in acts or omissions that resulted in the constitutional deprivation”). Cummings is
alleged merely to have referred Johnson to another member of the staff to determine
whether x-rays were needed, while Thompson is alleged merely to have administered
pain medication and consulted with Dr. Lyrene, her supervisor, concerning Johnson’s
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injured wrist. Finally—and most notably—Defendant Whitehead is not alleged to
have had any involvement in treating or diagnosing Johnson’s wrist.
In sum, Johnson fails to plead facts showing that Defendants were deliberately
indifferent with respect to his fractured wrist. However, since this is the first time that
claims against these Defendants have been challenged on a motion to dismiss, the
Court will allow Johnson an opportunity to amend his complaint. See Bank v. Pitt, 928
F.2d 1108, 1112 (11th Cir. 1991) (stating that “[w]here a more carefully drafted
complaint might state a claim, a plaintiff must be given at least one chance to amend
the complaint before the district court dismisses the action with prejudice”). Though
the Court questions whether amending the complaint would be futile, it nonetheless
will grant Johnson an opportunity to amend his complaint.
There is no independent basis for federal jurisdiction over Johnson’s
negligence/wantonness claim, and thus the Court must determine whether to exercise
supplemental jurisdiction under 28 U.S.C. § 1367 (2012). Section 1367 “reflects a
dichotomy between a district court’s power to exercise supplemental jurisdiction,
§ 1367(a), and its discretion not to exercise such jurisdiction, § 1367(c).” Parker v.
Scrap Metal Processors, Inc., 468 F.3d 733, 742 (11th Cir. 2006). While this court has
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the power to decide state law claims that form “part of the same case or controversy”
as the federal anchor claim, the Court may decline to do so if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original
(3) the district court has dismissed all claims over which it
has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c) (2012).
Johnson’s complaint currently fails to state a federal claim that can survive a
Rule 12(b)(6) motion to dismiss. If Johnson does not amend his complaint to state a
plausible federal cause of action, this Court will dismiss Johnson’s
negligence/wantonness claim without prejudice so he can it in an appropriate state
court. See 28 U.S.C. § 1367(c)(3); see also Raney v. Allstate Ins. Co., 370 F.3d 1086,
1089 (11th Cir. 2004) (“We have encouraged district courts to dismiss any remaining
state law claims when, as here, the federal claims have been dismissed prior to trial.”).
For the foregoing reasons, The Court will permit Johnson to file an amended
complaint within ten (10) days of the date of this Memorandum of Opinion and Order.
If Johnson files an amended complaint, the Court will consider the motion to dismiss
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moot, and Defendants Lyrene, Cummings, Thompson, and Whitehead will be free to
determine whether it would be appropriate to file a motion to dismiss the secondamended complaint. However, if Johnson does not file an amended complaint, the
Court will grant the current motion to dismiss (Doc. 27), dismissing the § 1983 claim
with prejudice and the state law claim without prejudice.
Done this 2nd day of March 2015.
L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
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