Glover v. Corizon Medical Service et al

Filing 14

MEMORANDUM OPINION AND ORDER ADOPTING the 11 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION to the extent that it calls for the dismissal of (1) Glovers claims against Corizon Health Services and Dr. Pavlakovic, (2) his claims regarding defendants failure to provide him with a heart monitor or physical therapy services, and (3) his claims that defendants alleged failure to provide him with adequate medical care was racially motivated. These claims are DISMISSED WITHOUT PREJUDIC E. The Report and Recommendation is REJECTED to the extent that it calls for dismissal of Glovers claims regarding Clabo, Christian, and Kirks alleged failure to assist him by helping to prevent him from falling while getting in and out of the shower and bed. This matter is REFERRED to the magistrate judge for further proceedings consistent with this Order. Signed by Judge Abdul K Kallon on 3/1/2017. (JLC)

FILED
2017 Mar-01 PM 03:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
A.C. GLOVER,

)
)
Plaintiff,
)
)
vs.
)
CORIZON MEDICAL SERVICE, et )
)
al.,
)
)
Defendants.

Civil Action Number
6:15-cv-00651-AKK-HGD

MEMORANDUM OPINION AND ORDER
A.C. Glover, an Alabama state prisoner acting pro se, filed this action
pursuant to 42 U.S.C. § 1983, alleging that Corizon Medical Service, Dr. David
Pavlakovic, and a Director Clabo, Nurse Christian, and Ms. Kirk 1 exhibited
deliberate indifference to his serious medical needs, in violation of the Eighth
Amendment. Doc. 1. After the magistrate judge assigned to the case entered a
report recommending the dismissal of all claims, see doc. 11, Glover timely filed
objections, see doc. 13. For the reasons stated below, Glover’s objections are due
to be sustained solely as to Glover’s claims against Clabo, Christian, and Kirk for
failing to assist him with getting in and out of the shower and bed despite their
subjective knowledge of his repeated falls.

In all other respects, Glover’s

objections are due to be overruled.
1

Although Ms. Kirk does not appear on the docket sheet, she is listed as a defendant in
doc. 1 at 3.

I.

GLOVER’S ALLEGATIONS

As discussed in the Report and Recommendation, Glover alleges that, while
incarcerated, Dr. Pavlakovic performed hip replacement surgery on Glover and
that after the surgery Glover was subsequently returned to the Bibb County
Correctional Facility’s health care unit. Doc. 1 at 4. Glover’s claims stem from
his post-surgery care after his return to the health care unit and issues related to a
defibrillator device he received at St. Jude Medical Center prior to his hip surgery.
Id. As related to the defibrillator, Glover alleges that Dr. Pavlakovic “never visited
with [him]” after his surgery, and “never provided [him] with a heart monitor . . .
to monitor the discharges of [his] defibrillator.” Id. at 5. Glover further alleges
that when he complained to Nurse Christian about these issues, she either ignored
his requests for assistance or directed him to submit a sick call slip. Id. Similarly,
when Glover complained to Clabo and Kirk, “they refuse[d] to help [him]” and
told him that “St. Jude should have provided [the monitor].” Id.
With respect to the post-hip surgery care, Glover alleges that he repeatedly
fell and “complained of falling several times to the defendants Clabo, Christian,
and Kirk.”

Id. at 5–6. Allegedly, these defendants purportedly refused to

personally assist him or schedule physical therapy services for him, and “told [him]
[that he] should let the [other] inmates help [him]” in and out of the shower and
bed. Id. Finally, Glover alleges that “[i]t is a[n] undisputed fact the [individual]
2

defendants will not physically touch a[n] African American patient that is housed
in the infirmary at Bibb County.” Id. at 6–7.
II.

ANALYSIS

Glover raises several objections to the magistrate judge’s Report and
Recommendation, which the court addresses below.
A. The magistrate judge correctly relied on 28 U.S.C. § 1915.
Glover challenges the magistrate judge’s recommendation that the court
dismiss Glover’s claims pursuant to 28 U.S.C. § 1915. According to Glover, 28
U.S.C. § 1915A(b)(1) is “not the correct authority to seek dismissal, as [Glover]
has long been granted the right to proceed in Forma Pauperis.” Doc. 13 at 1. The
court disagrees. Section 1915A(b)(1) provides that the court must “dismiss the
complaint or any portion of the complaint” either “before docketing” or “as soon as
practicable after docketing” if it is “frivolous, malicious, or fails to state a claim
upon which relief may be granted.” § 1915A(b)(1) (emphasis added). Moreover, §
1915(e)(2)(B)(ii), upon which the magistrate judge also relied, see doc. 11 at 2,
provides, in pertinent part, that the court “shall dismiss the case [of any person
proceeding in forma pauperis] at any time if the court determines that . . . the
action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief.” § 1915(e)(2)(B)(ii) (emphasis added). In other words, § 1915 allows
3

the court to dismiss claims as soon as the court becomes aware that the claims lack
merit. Accordingly, Glover’s argument that the court improperly used § 1915 as a
vehicle to recommend dismissal is OVERRULED.
B. The magistrate judge properly denied Glover discovery.
Glover objects next to the magistrate judge’s order denying his request for
discovery to determine the “complete names of all the defendants, and their gender
approx. age, race, and their official position.” Doc. 13 at 2. The court agrees with
the magistrate judge that Glover’s request to conduct discovery is premature. See,
e.g., Spivey v. Stevens, No. 5:11-cv-81(MTT), 2011 U.S. Dist. LEXIS 103213, at
*1 (M.D. Ga. July 14, 2011) (“Plaintiff’s requests are premature at this time
because the Defendants have not yet filed an answer or dispositive motion.”).
Glover’s objection is therefore OVERRULED.
C. The claims related to the defibrillator fail.
As to Glover’s claim that defendants failed to provide him with a heart
monitor, the magistrate judge concluded that Glover’s allegations “boil down to a
difference of opinion between medical professionals as to post-operative methods.”
Doc. 11 at 9. Glover objects that “his defibrillator was discharging and was not
properly monitored by the defendants, and [that] said monitor was ordered by
medical officials at St. Jude Medical Center.” Doc. 13 at 2; see also id. at 3. This
objection is OVERRULED because, as an initial matter, Glover fails to allege
4

either that his defibrillator was discharging improperly (i.e., malfunctioning), or
that he informed defendants that he believed it was malfunctioning, and Glover’s
request for a heart monitor as a preventive measure does not equate to an
objectively serious medical need. See Bumpus v. Watts, 448 F. App’x 3, 6 (11th
Cir. 2011) (“The district court did not err by dismissing Bumpus’s Eighth
Amendment complaint for failure to state a claim. Because Bumpus only asserted
that routine dental care would prevent future dental problems, he has failed to
show an objectively serious need.”).

Moreover, even accepting Glover’s

allegations as true, the questioned conduct must involve “something more than a
medical judgment call” to constitute deliberate indifference.

See Peterson v.

Willie, 81 F.3d 1033, 1038 (11th Cir. 1996).
D. The claims related to Dr. Pavlakovic’s alleged failure to visit Glover
and Clabo, Christian, and Kirk’s alleged failure to provide Glover
physical therapy services fail.
The court agrees with the magistrate judge that Glover’s allegations that Dr.
Pavlakovic failed to visit Glover post-surgery and that the other defendants failed
to provide him physical therapy services, even when accepted as true, do not state
a claim for deliberate indifference, regardless of whether these omissions were the
result of a medical judgment call or medical malpractice. See Peterson, 81 F.3d at
1038; see also Gross v. White, 340 F. App’x 527, 535 (11th Cir. 2009) (“[A]
simple difference in medical opinion between the prison’s medical staff and the
5

inmate as to the latter’s . . . course of treatment is not enough to show deliberate
indifference to serious medical needs.”) (internal quotation marks omitted,
alteration in Gross); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)
(“Mere medical malpractice . . . does not constitute deliberate indifference.”).
Moreover, Glover does not allege any facts showing that Dr. Pavlakovic knew of
and consciously disregarded a serious risk of harm to Glover. See Campbell v.
Sikes, 169 F.3d 1353, 1364 (11th Cir. 1999) (“[L]iability may be imposed for
deliberate indifference only if the plaintiff proves the defendant actually knew of
an excessive risk to inmate health or safety an disregarded that risk. Proof that the
defendant should have perceived the risk, but did not, is insufficient.”) (internal
citations and quotation marks omitted). Accordingly, Glover’s objections in this
regard are OVERRULED.
E. The claims against Corizon fail.
Glover does not voice any specific objection to the magistrate judge’s
determination that Glover fails to state a claim against Corizon Health Services.
As the magistrate judge correctly notes, the doctrine of respondeat superior is
“unavailable under section 1983 claims.” Dean v. Barber, 951 F.2d 1210, 1215
(11th Cir. 1992). Moreover, Glover fails to allege facts showing either a pervasive
policy of deliberate indifference to serious medical needs sufficient to impute the
alleged conduct to Corizon, or that one of the individual defendants serves as the
6

“final policymaker” for Corizon and implemented such a policy. See Grech v.
Clayton County, 335 F.3d 1326, 1329–30 (11th Cir. 2003) (“A plaintiff has . . . two
methods by which to establish a county’s policy: identify either (1) an officially
promulgated county policy or (2) an unofficial custom or practice of the county
shown through the repeated acts of a final policymaker for the county.”).
Therefore, the court adopts the magistrate judge’s findings related to Corizon and
accepts his recommendation.
F. The claims against Clabo, Christian, and Kirk regarding Glover’s
repeated falls survive.
Finally, Glover objects to the magistrate judge’s determination that Glover
fails to state a claim against Clabo, Christian, and Kirk based on Glover’s
allegation that these defendants ignored his repeated complaints about falling after
his hip surgery and his requests for assistance. Doc. 13 at 2–3. Although the
magistrate judge is correct that Glover “admits [that defendants told him] to allow
inmates in the infirmary to help him” and that the provision of such assistance
“does not require any expert training,” doc. 11 at 12, relevant here, the assistance
at issue was essential to Glover’s post-recovery care. In that respect, far from
being a “mere difference of opinion between the plaintiff and the prison medical
staff as to who should help the plaintiff ambulate,” id., Glover is actually alleging
that these defendants refused to provide assistance with egress and ingress even
though he purportedly repeatedly told them he was falling and re-injuring his hip.
7

Compare Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (“a simple
difference in medical opinion between the prison’s medical staff and the inmate as
to the latter’s . . . course of treatment” does not support deliberate indifference
claim), with McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) (district
court erred in granting summary judgment when medical defendants were “aware”
that plaintiff was suffering but essentially provided “no care at all”).
To prevail on this claim, Glover must allege that he suffered from a serious
medical need, deliberate indifference to that need, and a causal link between the
deliberate indifference and his injury. Mann v. Taser Int’l, Inc., 588 F.3d 1291,
1306–07 (11th Cir. 2009). To show deliberate indifference, “a prison inmate must
show: (1) subjective knowledge of a risk of serious harm; [and] (2) disregard of
that risk; (3) by conduct that is more than gross negligence.” Thomas v. Bryant,
614 F.3d 1288, 1312 (11th Cir. 2010). Glover has made a sufficient showing at
this juncture through his allegations that he suffered from a serious injury, i.e.,
post-operative hip weakness or instability that repeatedly caused him to fall when
getting in and out of the shower and bed, that he told Clabo, Christian, and Kirk
“several times” that he needed assistance, and that they either ignored him or
suggested that he ask other inmates to assist him. Doc. 1 at 5–6. Moreover, the
court can reasonably infer from Glover’s allegations that defendants’ repeated
refusal to assist Glover led to subsequent falls and re-injury. See Jackson v.
8

Birmingham Bd. of Educ., 309 F.3d 1333, 1335 (11th Cir. 2002) (“On a motion to
dismiss, the facts stated in [the] complaint and all reasonable inferences therefrom
are taken as true.”) (emphasis added); see also Williams v. Canty, No. 5:05-cv-310
CAR, 2008 U.S. Dist. LEXIS 23320, at **7–8 (M.D. Ga. Mar. 25, 2008) (“A
defendant’s subjective knowledge of a risk of serious harm is a question of fact
subject to demonstration in the usual ways, including inference from circumstantial
evidence, and a factfinder may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious.”) (internal quotation marks
omitted). In this court’s view, these allegations state a claim for knowing disregard
of a serious risk of injury which constitutes more than mere difference of medical
opinion or a decision regarding the appropriate course of treatment. Therefore,
Glover’s objection is SUSTAINED.
III.

CONCLUSION

In sum, after a de novo review of the entire file, the court has reached an
independent conclusion that the Report and Recommendation is hereby
ADOPTED to the extent that it calls for the dismissal of (1) Glover’s claims
against Corizon Health Services and Dr. Pavlakovic, (2) his claims regarding
defendants’ failure to provide him with a heart monitor or physical therapy
services, and (3) his claims that defendants’ alleged failure to provide him with

9

adequate medical care was racially motivated. 2 These claims are DISMISSED
WITHOUT PREJUDICE. The Report and Recommendation is REJECTED to
the extent that it calls for dismissal of Glover’s claims regarding Clabo, Christian,
and Kirk’s alleged failure to assist him by helping to prevent him from falling
while getting in and out of the shower and bed. This matter is REFERRED to the
magistrate judge for further proceedings consistent with this order.
DONE the 1st day of March, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

2

Glover does not challenge the magistrate judge’s conclusion that Glover’s allegation
that defendants “will not touch an African-American inmate” is conclusory and lacks factual
support. The court agrees with that conclusion, and adds that the proper vehicle for such a claim
is an action under the Equal Protection Clause of the Fourteenth Amendment. See Dumel v.
Elvin, 561 F. App’x 869, 870 (11th Cir. 2014). In any event, Glover’s allegations fail to state
such a claim, because Glover does not allege facts showing that “he is similarly situated with
other prisoners [of a different race] who received more favorable treatment.” See id.
10