SMALL v. MCDONOUGH et al
ORDER re 11 Amended Complaint, filed by LONNIE LEE SMALL, JR Clerk to forward to pltf a civil rights complaint form (42 USC 1983) w/this case number written on it. Within thirty (30) days of order date, pltf shall fi le SECOND AMENDED COMPLAINT. Pltf's 12 MOTION For Appointment of Counsel is DENIED without prejudice. Amended Pleadings due by 3/2/2008. Signed by MAGISTRATE JUDGE MILES DAVIS on February 1, 2008.(cc: Small w/1983 form) (cbj)
SMALL v. MCDONOUGH et al
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION LONNIE LEE SMALL, JR., Plaintiff, vs. JAMES R. MCDONOUGH, et al., Defendants. Case No. 5:07cv200/RS/MD
ORDER This cause is before the court upon plaintiff's amended civil rights complaint filed pursuant to 42 U.S.C. §1983. (Doc. 11). Plaintiff has also filed a motion for appointment of counsel. (Doc. 12). From a review of the amended complaint, it is evident that the facts as presented fail to support a viable claim for relief against one or more of the named defendant s . The court will therefore allow the plaintiff an opportunity to clarify his
allegations in an amended complaint. Plaintiff, an inmate of the Florida penal system, names fourteen defendants in his amended complaint: James McDonough, Secretary of the Florida Department of Corrections, and thirteen prison officials at Gulf Correctional Institution ("Gulf CI"): Warden Jerry Cummings, Chief Physician Dr. Bagilo, Nurse Sexton, Officer Moore, Officer Heyser, Officer Gathers, Officer Marshall, Sergeant Williams, Officer Curtis, Officer Barton, Nurse Riley, Nurse Goodrich, and Captain S. Williams. (Doc. 11, pp. 1-2). The allegations of plaintiff's amended complaint are as follows. On June 29, 2006, while being prepared for escort to confinement due to the filing of disciplinary reports by defendants Gathers and Marshall, defendant Moore "placed a pair of handcuffs on [plaintiff] wrong." (Id., p. 5). Later that evening, defendants Heyser and Sergeant Williams "tried to remove the handcuffs for close to thirty (30) minutes, crushing my 4th and 5th vertebra's [sic] together,
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causing all of my injuries." (Id.). After plaintiff advised defendant Heyser that he needed to go to medical because his back and shoulder hurt, she gave him a request form and instructed him to submit an inmate request/grievance. The following morning, plaintiff advised defendant Curtis that he "had a medical emergency." Curtis walked off. Defendant Nurse Riley was in plaintiff's dormitory for sickcall. When plaintiff advised her that he "had a medical emergency," she informed plaintiff that that was not what she was there for and walked off. Plaintiff complains that later that day defendant Barton "denied me access to my medical needs" when Barton stated he didn't have time to take plaintiff to medical. Two days later, defendant Nurse Goodrich was in plaintiff's dormitory for sick-call. Plaintiff advised her that his back and shoulder were in serious pain. He further described how the injury took place: that when he was handcuffed on June 29, 2006 the keyhole in the handcuffs was placed in the wrong spot; that it had taken officers thirty minutes to remo ve the cuffs; and that during their removal plaintiff heard a pop in his shoulder and felt pain in his back. Plaintiff also complained that he was having trouble breathing. (Id., pp. 5-6). In response, Nurse Goodrich examined plaintiff and placed him on the call-out list to see a physician. Plaintiff complains that the examination was conducted through the other side of his cell door and that he was never seen by a physician. Upon release from confinement on July 12, 2006, plaintiff was seen by medical staff. X-rays were taken the following day. Plaintiff complains that he did not see a doctor on that date. Plaintiff alleges that on August 13, 2006 defendant Captain S. Williams placed him in confinement on a disciplinary charge. Plaintiff asserts that defendant Warden Cummings denied him access to adequate medical care when, on August 29, 2006, he told plaintiff he did not have time to talk with him. (Id., p. 6). Plaintiff asserts that defendants Dr. Bagilo and Nurse Sexton exhibited deliberate indifference to his serious medical need "by not seeing [plaintiff] for the five months [he] was at Gulf Correctional Institution." Claiming defendants' conduct constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, plaintiff seeks $5 million compensatory damages and $4 million punitive damages.
Case No: 5:07cv200/RS/MD
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In any section 1983 action, the initial inquiry must focus on whether two essential elements are present: 1. whether the conduct complained of was committed by a person acting under color of state law; and 2. whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420, 428 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). To prevail on an Eighth Amendment claim, plaintiff must demonstrate: a substantial risk of serious harm, defendants' deliberate indifference to that risk, and causation. Hale v. Tallapoosa County, 50 F.3d 1579, 1583 (11th Cir. 1985) (citing Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1974, 128 L.Ed.2d 811 (1994); LeMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993)). Amendment analysis, requires: conduct by public officials "sufficiently serious" to constitute a cruel or unusual deprivation one "denying
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