Booth v. Tuscaloosa County et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS that all of plaintiff's claims in this action are DISMISSED WITHOUT PREJUDICE except the Eighth Amendment and negligent hiring claims against defendant Corizon which is REFERRED to the magistrate judge for further proceedings as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/25/2016. (AHI)

FILED
2016 Feb-25 AM 09:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
RICKY DEWAYNE BOOTH,
Plaintiff,
vs.
TUSCALOOSA COUNTY, et al.,
Defendants.

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Case No. 7:14-cv-01622-CLS-JEO

ORDER
The magistrate judge filed a report and recommendation on December 8, 2015,
recommending that all claims in this action be dismissed without prejudice pursuant
to 28 U.S.C. § 1915A(b)(1) for failing to state a claim upon which relief can be
granted, except:
•

The Eighth Amendment medical care claims against defendants Whitley,
Pavlakovic, Butler, Miller and Kirk for failure to properly diagnose and
treat the plaintiff’s scabies condition; and

•

The state law medical negligence claims against Corizon, Whitley,
Pavlakovic, Butler, Miller and Kirk for failure to properly diagnose and
treat the plaintiff’s scabies condition.

(Doc. 13). It was further recommended that the remaining claims be referred to the
magistrate judge for additional proceedings. (Id.). Plaintiff filed objections to the
report and recommendation on January 28, 2016. (Doc. 20).
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Before addressing plaintiff’s objections, the court notes that on March 16,
2015, plaintiff was notified that his complaint was deficient because he had “failed
to set forth his claim adequately.” (Doc. 9 at 1). He was directed to amend his
complaint, and in so doing,
state clearly how each named defendant violated his constitutional
rights, the date(s) on which the incident(s) occurred, and where the
incident(s) occurred. THE PLAINTIFF MUST CLEARLY SET
FORTH THE FACTS CONCERNING ANY INCIDENT ABOUT
WHICH HE COMPLAINS. The plaintiff is ADVISED that conclusory
and general assertions are not sufficient to state a claim upon which
relief under § 1983 can be granted. See Fullman v. Graddick, 739 F.2d
553, 556-57 (11th Cir. 1984). The amended complaint must include all
of the plaintiff’s claims in this action[.]
(Doc. 9 at 1-2 (alteration supplied)). On May 21, 2015, plaintiff filed an amended
complaint. (Doc. 12). The magistrate judge’s report and recommendation is based
upon the amended complaint. (Doc. 13). In that report, plaintiff was notified of his
opportunity to file objections, and instructed that “the filing of objections is not a
proper vehicle to make new allegations or present additional evidence.” (Id. at 21).
In his objections, plaintiff explains that he suffers from serious mental illnesses
for which he has sought mental health treatment. (Doc. 20 at 1). He was prescribed
psychotropic medication in March 2015 by Dr. Hunter, but refused take it because no
one explained why it was being prescribed. (Id.). In October 2015, psychologist Mrs.
Black referred him to Dr. Osula, who “(re)diagnosed” plaintiff as suffering from bi2

polar disorder and prescribed psychotropic medications that have unpleasant side
effects. (Id. at 1-2).
Plaintiff further complains that on August 14, 2015, he was taken to
Brookwood Medical Center for chest pains, and the emergency room doctor
scheduled him “an appointment with a heart doctor to have a stress test.” (Id. at 3).
Plaintiff attaches a copy of an inmate sick call request slip dated November 22, 2015,
declaring his “heart is still having pain,” he “was suppose[d] to see [the] doctor in
July 2015,” and he had injured his back. (Id. at 11) (alterations supplied). As of
December 31, 2015, Dr. Pavlakovic had not seen plaintiff. (Id. at 3).
To the extent plaintiff is arguing Dr. Osula or any other mental health
professional has not provided adequate treatment for his bi-polar disorder, and Dr.
Pavlakovic has failed to provide adequate medical care for his heart condition and
back injury, his objections are overruled. Plaintiff’s amended complaint does not
mention his mental health concerns, heart condition or back injury, much less state
any claims against any defendants in connection therewith. If plaintiff desires to
pursue these allegations as claims, he must file a new 42 U.S.C. § 1983 complaint.
Plaintiff sets forth an objection related to the recommended dismissal of his
Eighth Amendment medical care claims pertaining to the failure to adequately treat
his MRSA infection. (Id. at 4). He asserts in his own words,
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My main thing was for the health care, and health care people not to
coratine [sic] /separate me with MRSA, since it highly contagious,
spreadable I live in open bay living area with 106 inmates, if they see a
person/inmate sick they will gather his mattress, etc throw it in the hall,
or beat him up bad.
(Id.) (emphasis in original). It appears that plaintiff is attempting to declare his
MRSA related claims were not about the failure of the defendants to properly
diagnose and treat the condition, but about his desire not to be quarantined so that
inmates would not be apprised of the illness and retaliate again him. There is no basis
to construe the allegations in plaintiff’s complaint in this fashion. In his complaint,
plaintiff only alleged the defendants failed to diagnose and treat his MRSA infection.
(Doc. 12 at 4-6).
The court has thoroughly reviewed the MRSA allegations in the Eighth
Amendment and state medical negligence and negligent hiring contexts, and finds the
magistrate judge’s recommended dismissals for failure to state a claim to be well
supported. The court will not consider plaintiff’s quarantine concern because it is a
new allegation proffered to support entirely different claim theories.

Moreover,

plaintiff does not allege he was ever quarantined, so any new claims against
defendants based upon this concern would fail to state a claim upon which relief can
be granted.
Finally, plaintiff appears to object to the recommended dismissal of the Eighth
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Amendment and negligent hiring claims against Corizon arising from the individual
defendants’ failure to properly diagnose and treat his scabies infection. (Doc. 20 at
2). He declares “Corizon don’t care, Corizon is a company that” cuts corners. (Id.)
In support thereof, plaintiff contends he has “heard” Dr. Whitley and Nurse
Practitioner Butler were “fired.” (Id.) Corizon also hired “Dr. David Pavlakovic[,]
who lost his medical license[] due to writing prescriptions to women for sexual
favors[.] Nurse Georgia Miller was fired for having ‘(people)’ on pay-roll who did
not exist or work here.” (Id.) (alterations supplied).
Even if Corizon fired Whitley and Butler, that fact, standing alone, would not
be sufficient to attach constitutional or state court civil liability to defendant Corizon
in connection with plaintiff’s claims. The fact that Corizon fired Nurse Miller for
having fictitious employees on the payroll also has no bearing on Nurse Miller’s
professional medical abilities, which is the material question considered in connection
with plaintiff’s claims against her.
Plaintiff has raised Corizon’s employment of Dr. Pavlakovic without
determining whether he had a license to practice medicine, or in spite of the fact he
had no license, for the first time in the his objections, and therefore plaintiff has
alleged sufficient facts for 1915A screening purposes to establish Eighth Amendment
and negligent hiring claims against Corizon based upon Dr. Pavlakovic’s failure to
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diagnose and properly treat plaintiff's scabies condition.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the objections thereto, the court
is of the opinion that the magistrate judge’s report is due to be and is hereby
ADOPTED and the magistrate judge’s recommendation is ACCEPTED, with the
exception of the Eighth Amendment and negligent hiring claims against defendant
Corizon based upon Dr. Pavlakovic’s inadequate treatment of plaintiff’s scabies
condition. It is therefore ORDERED, ADJUDGED, and DECREED that all of
plaintiff’s claims in this action are DISMISSED WITHOUT PREJUDICE pursuant
to 28 U.S.C. § 1915A(b), except
•

The Eighth Amendment medical care claims against defendants Whitley,
Pavlakovic, Butler, Miller and Kirk for failure to properly diagnose and
treat his scabies condition;

•

The Eighth Amendment medical care claim against Corizon to the extent
it is alleged Dr. Pavlakovic failed to properly diagnose and treat his
scabies condition;

•

The state law medical negligence claims against Corizon, Whitley,
Pavlakovic, Butler, Miller and Kirk for failure to properly diagnose and
treat his scabies condition; and

•

The state law negligent hiring claim against Corizon for employing Dr.
Pavlakovic, the underlying basis of which pertains to Pavlakovic's
failure to properly diagnose and treat his scabies condition.

The remaining claims are REFERRED to the magistrate judge for further
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proceedings.

DONE this 25th day of February, 2016.

______________________________
United States District Judge

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