MILINAVICIUS v. BROWN et al

Filing 6

ORDER dismissing Plaintiff's Complaint against Defendants. Ordered by U.S. District Judge W LOUIS SANDS on 9/18/14. (wks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
ROLANDAS MILINAVICIUS,

:
:
Plaintiff,
:
:
vs.
:
:
Ms. BROWN, et al.,
:
:
Defendants.
:
_________________________________ :

CASE NO. 1:14-CV-23-WLS-TQL

ORDER
Plaintiff Rolandas Milinavicius, who is currently confined at Autry State Prison in
Pelham, Georgia, filed a pro se civil rights complaint under 42 U.S.C. § 1983. (Doc. 1.)
Plaintiff’s motions to proceed in forma pauperis were previously granted, and Plaintiff paid the
assessed initial partial filing fee on March 20, 2014. As explained below, the claims in
Plaintiff’s Complaint are subject to preliminary review under 28 U.S.C. § 1915A.
I.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial
screening of a prisoner complaint “which seeks redress from a governmental entity or officer
or employee of a governmental entity.” Section 1915A(b) requires a federal court to dismiss
a prisoner complaint that is: (1) “frivolous, malicious, or fails to state a claim upon which
relief may be granted” or (2) “seeks monetary relief from a defendant who is immune from
such relief.”
A claim is frivolous when it appears from the face of the complaint that the factual
allegations are “clearly baseless” or that the legal theories are “indisputably meritless.” Carroll
v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint fails to state a claim when it does
not include “enough factual matter (taken as true)” to “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests[.]” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555-56 (2007) (noting that “[f]actual allegations must be enough to raise a right to
relief above the speculative level” and that the complaint “must contain something more . . .
than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of
action”) (internal quotations and citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (explaining that “threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice”).
In making the above determinations, all factual allegations in the complaint must be
viewed as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover, “[p]ro se
pleadings are held to a less stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
In order to state a claim for relief under Section 1983, a plaintiff must allege that: (1)
an act or omission deprived him of a right, privilege, or immunity secured by the
Constitution or a statute of the United States and (2) the act or omission was committed by a
person acting under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1581 (11th Cir.
1995). If a litigant cannot satisfy these requirements, or fails to provide factual allegations in
support of his claim or claims, then the complaint is subject to dismissal. See Chappell v. Rich,
340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming the district court’s dismissal of a Section
1983 complaint because the plaintiff’s factual allegations were insufficient to support the
alleged constitutional violation); see also 28 U.S.C. § 1915A(b) (dictating that a complaint, or
any portion thereof, that does not pass the standard in Section 1915A “shall” be dismissed
on preliminary review).
II.

BACKGROUND

In this case, Plaintiff sues Autry State Prison (“Autry”), Autry Physician’s Assistant
(P.A.) Ms. Brown, Autry Physician Dr. McGhee, two Autry Nurses named as Jane Does,
Autry Warden Alan Carter, Autry Medical Director Jane Doe, Autry Chief Counselor Ms.
Bell, and Autry Counselors Osborn, Ross, Spencer, and Williams. (Compl. at 4.) Plaintiff
also sues Augusta State Medical Prison Cardiologist John Doe, the Georgia Department of
Corrections (“GDOC”), GDOC Director of Inmate Affairs Ricky Myrick, GDOC

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Commissioner Brian Owens, and GDOC Director of Utilization Management John Doe.
(Id.)
Plaintiff alleges that Autry State Prison officials were indifferent to his medical needs.
On January 12, 2013, while incarcerated at Autry, he began having severe chest pains,
became dizzy, and passed out. While other inmates observed Plaintiff and sought medical
attention for him, Plaintiff regained consciousness and was told that “medical personnel had
advised that they were not going to respond because Plaintiff had the capability of walking.”
Plaintiff alleges he had chest pains and a rapid heartbeat on February 12, 2013. Plaintiff
again had chest pains and a rapid heartbeat on February 15, 2013, wherein he was taken to
Albany Memorial Hospital, administered tests, and observed. Plaintiff was then returned to
Autry State Prison. Plaintiff contends hospital personnel “recommend[ed] and schedule[d]
[him] to return” to the hospital for additional tests, treatment, and a heart stress test, but that
Autry medical personnel and prison officials refused to allow him to return to the hospital
for his scheduled appointment.
On February 19, 2013, Plaintiff called his wife, who then called Defendant Counselor
Osborn. Plaintiff was thereafter seen by the medical department at Autry where he was
given an “unknown medication” and a “perfunctory test” but not given any other
information. Plaintiff contends he submitted numerous medical requests to be seen and was
summoned to the medical department on March 6, 2013, and March 13, 2013, only to be
told that neither his tests results nor his medical file could be found. On April 13, 2013,
Plaintiff wrote a letter to GDOC Director of Inmate Affairs Ricky Myrick asking that he
assist Plaintiff in obtaining a resolution to a grievance he filed on February 19, 2013,
pertaining to the insufficient medical care he received. Plaintiff contends Defendant Myrick
failed to respond.
On April 12, 2013, Defendant Counselor Osborn tried to make Plaintiff “sign off”
on, or withdraw, the out-of-time response by prison officials to his medical issue, but
Plaintiff refused. Then, on April 16, 2013 and April 19, 2013, Plaintiff was summoned to
Defendant Counselor Ross’s office wherein Defendant Ross attempted to force him to sign
off on his February 19, 2013 grievance, but Plaintiff again refused.

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On May 1, 2013, while Plaintiff was being seen by Defendant P.A. Brown, he
inquired about why he was not being given a stress test, wherein Defendant Brown told him
he had no right to medical treatment. Then, on May 13, 2013, Plaintiff was summoned to
the medical department and after waiting for five hours for his stress test, Plaintiff was told
his files could not be located. On May 14, 2013, Plaintiff again saw Defendant Brown and
told her he was still having chest pains and left arm pain.
Plaintiff addressed a letter to Defendant Director of Utilization Management John
Doe on May 21, 2013, regarding his complaints. Defendant Doe failed to respond. On May
30, 2013, Plaintiff was transferred to Augusta State Medical Prison (“Augusta”) to be seen by
a cardiologist. Plaintiff was seen by Cardiologist John Doe on June 5, 2013, but a stress test
could not be completed because Plaintiff’s heart rate increased and his “skin color changed.”
On June 17, 2013, Plaintiff began having severe chest pains and shortness of breath.
Plaintiff was not seen by Augusta medical personnel until June 19, 2013, wherein he was told
he needed to be seen by a gastroenterologist and was prescribed pain medication which he
never received. Plaintiff submitted a grievance on June 19, 2013. Plaintiff had an
appointment to be seen by the Cardiologist at Augusta on June 27, 2013, but it was
cancelled1 and he was returned to Autry State Prison. On July 1, 2013 and July 2, 2013,
Plaintiff submitted two more grievances regarding the pain medication. Plaintiff contends
he was summoned to Defendant Counselor Williams’ office wherein Defendant Williams
attempted to force him to “drop” both the grievance he filed at Augusta and the July 2,
2013, grievance he had just filed at Autry.
On July 3, 2013, an ultrasound was performed on Plaintiff. Then, on July 9, 2013,
Plaintiff was seen by an unidentified Physician’s Assistant who refused to allow him to be
seen by a gastroenterologist or to provide him the pain medication he had been prescribed.
On July 19, 2013, Plaintiff began having trouble breathing and submitted a medical request,
but got no response.
On August 6, 2013, Plaintiff was again returned to Augusta and placed on a heart
monitor for forty-eight hours. During that time, Plaintiff began having severe chest pains
1

Plaintiff provides no explanation for the cancellation.

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and extreme difficulty breathing.2 On August 13, 2013, Plaintiff was returned to Autry State
Prison. The next day Plaintiff again began having severe chest pains. He then “went into a
coma” and, when medical personnel arrived, they “became irate because [he] was
unresponsive thus leaving [him] as [he] was and refusing to provide [him] with any type of
medical attention.” On August 15, 2013, Plaintiff again experienced more chest pains and
was taken to the medical department. Plaintiff passed out and lost control of his bodily
functions. Plaintiff was given “several shots and pill medication” and was returned to his
cell thirty minutes later. On August 18, 2013, Plaintiff once again experienced chest pains
and got very dizzy. He was transported to Albany Memorial Hospital where he received
“unknown” treatment and returned to the prison. Plaintiff filed another grievance on
August 19, 2013.
On August 20, 2013, Plaintiff saw Defendant P.A. Jane Doe who assured him she
would give him his prescribed medications but failed to do so. Defendant Doe then placed
Plaintiff on “the mental health program” without his knowledge. Plaintiff filed another
grievance on August 23, 2013. On September 6, 2013, Plaintiff was called to Defendant
Counselor Bell’s office. Defendant Bell attempted to persuade Plaintiff to sign a form
withdrawing his August 23, 2013 grievance, but Plaintiff refused. Plaintiff then had a video
conference with a psychiatrist on September 13, 2013, wherein he was told he had insomnia.
On September 18, 2013, Plaintiff saw a cardiologist who told him nothing was wrong with
his heart but that he may have had a stroke. Defendant Bell again attempted to have
Plaintiff sign off on the August 23, 2013 grievance. Plaintiff again refused.
On October 2, 2013, Plaintiff received a “telemedicine” appointment wherein he was
prescribed mental health medications. Plaintiff contends he asked for a brain scan to
determine if the strokes he might have suffered had caused any damage to his brain, but his
request was refused. On October 15, 2013, Plaintiff saw Mental Health Counselor Jones.
Plaintiff explained he had possibly had three strokes since January 2013 and that medical
personnel at Autry State Prison had refused to allow him to be seen by a gastroenterologist.
Plaintiff states Counselor Jones inquired of the medical department why Plaintiff had not
2

Plaintiff fails to state whether he attempted to see medical personnel on this date.

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been seen by a gastroenterologist and why he had not received a CT scan of his brain.
Plaintiff was informed he would be sent to Augusta State Medical Prison for those tests. As
of October 23, 2013, Plaintiff contends he still had not received the mental health
medication prescribed for him in October nor received any medical treatment for his
conditions.
Plaintiff seeks declaratory judgment, a permanent injunction, compensatory damages
in the amount of $300,000.00 against each defendant, and punitive damages in the amount
of $300,000.00 against each defendant. (Id.)
III.
A.

DISCUSSION

Jane/John Does
Fictitious party pleading is not generally permitted in federal court. A plaintiff may

sue an unknown defendant only when he sufficiently identifies the defendant to allow
service of process. Moulds v. Bullard, 345 F. App’x 387, 390 (11th Cir. 2009); Dean v. Barber,
951 F.2d 1210, 1215-16 (11th Cir. 1992). Plaintiff has not sufficiently identified Defendants
Autry State Prison Nurses Jane Doe 1 and Jane Doe 2 so as to allow for service. Thus, these
Defendants are DISMISSED from this action.
It is found, however, that Plaintiff has sufficiently identified Autry State Prison
Medical Director Jane Doe, Augusta State Medical Prison Cardiologist John Doe, and
GDOC Director of Utilization Management John Doe.
B.

Entities Not Capable of Being Sued
As stated above, to state a claim for relief under Section 1983, a plaintiff must allege

that the unconstitutional act or omission was committed by a person acting under color of
state law. Hale v. Tallapoosa Cnty., 50 F.3d at 1581. Federal Rules of Civil Procedure Rule
17(b) provides that the “[c]apacity to sue or be sued” is determined “by the law of the state
where the court is located.” Georgia law thus controls this issue, and the Georgia Supreme
Court has explained that there are only three classes of legal entities: “(1) natural persons; (2)
an artificial person (a corporation); and (3) such quasi-artificial person as the law recognizes
as being capable to sue.” Georgia Insurers Insolvency Pool v. Elbert Cnty., 258 Ga. 317, 318 (1988)
(quoting Cravey v. Southeastern Underwriters Assn., 214 Ga. 450, 453 (1958)). Autry State Prison

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is none of these. In fact, federal courts have routinely found that a prison is not an entity
capable of being sued under § 1983. See, e.g., Logue, Jr. v. Chatham Cnty. Det. Cntr., 2010 WL
5769485 (S.D. Ga. Dec. 29, 2010) (“Chatham County Detention Center . . . is not an entity
that is subject to suit under § 1983.”); Ansley v. Franks, 2010 WL 4007626 *2 n.2 (S.D. Ga.
August 30, 2010) (A . . . jail has no independent legal existence and is . . . not . . . subject to
suit under § 1983.”); Allen v. Brown, No. CV 112–052, 2013 WL 1333175, at *3 (S.D. Ga.
March 7, 2013).
As to the claims against the GDOC, the Eleventh Circuit has held that suits for both
monetary damages and injunctive relief against the GDOC are barred by the Eleventh
Amendment unless the State consents. Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989)
(citing Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). Furthermore,
Plaintiff’s complaint fails to allege any specific wrongdoing by the GDOC itself. Therefore,
it is found that any and all claims made against the Autry State Prison and the GDOC are to
be DISMISSED.
C.

Supervisor Liability
To the extent that Plaintiff has named Autry State Prison Warden Alan Carter and

GDOC Commissioner Brian Owens as defendants, his claims against them must be
dismissed. It is apparent from his allegations that Plaintiff named Defendant Carter and
Owens as defendants because of their supervisory positions. Defendants Carter and Owens
cannot be liable solely by virtue of their supervisory positions. Hartley v. Parnell, 193 F.3d
1263, 1269 (11th Cir.1999). “While we do not require technical niceties in pleading, we must
demand that the complaint state with some minimal particularity how overt acts of the
defendant caused a legal wrong.” Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)
(citation omitted). To state a claim against a supervisory official, Plaintiff must allege that
the supervisor “personally participate[d] in the alleged unconstitutional conduct or . . . there
is a causal connection between the actions of [the] supervising official and the alleged
constitutional deprivation.” Cottone v. Jenne, 326 F. 3d 1352, 1360 (11th Cir. 2003). Plaintiff
has not made any such allegations or connections in this case. As such, Defendants Alan
Carter and Brian Owens are hereby DISMISSED as parties from this action.

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D.

Failure to State a Claim
Plaintiff’s complaint alleges deliberate indifference to his medical needs, due process

violations, violation of his equal protection rights, cruel and unusual punishment, as well as a
state law breach of contract claim, which all appear to evolve from Defendants’ failure to
provide him proper medical care. (Compl. at 25-32.) Plaintiff’s complaint also vaguely
references a claim of retaliation (in the form of harassment and other reprisals by prison
officials) resulting from his complaints and grievances regarding his medical care. (Compl. at
25.)
1.

Eighth Amendment Violations

Plaintiff’s dissatisfaction with his medical care does not equate to inadequate medical
care. To state an Eighth Amendment claim for inadequate medical care, a prisoner must
allege acts or omissions sufficiently harmful to evidence deliberate indifference to a serious
medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). These allegations must satisfy both
an objective and subjective component. Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176,
1186 (11th Cir. 1994), overruled in part on other grounds by Hope v. Peltzer, 536 U.S. 730, 739
(2002). Under the first component, a prisoner must set forth evidence of an “objectively
serious medical” need that, if left unattended, poses a substantial risk of serious harm. Taylor
v. Adams, 221 F.3d 1254, 1257 (11th Cir. 2000). A medical need is serious if it has been
diagnosed by a doctor as mandating treatment or is so obvious that even a layperson would
easily recognize the necessity for a doctor’s attention. Hill, 40 F.3d at 1187. The prisoner
must then demonstrate that a prison official had subjective knowledge of the risk of serious
harm and disregarded that risk. Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005).
The Eleventh Circuit has held that “[w]hen the claim turns on the quality of the
treatment provided, there is no constitutional violation as long as the medical care provided
to the inmate is ‘minimally adequate.’” Blanchard v. White County Detention Center Staff, 262
Fed.Appx. 959, 963-64 (11th Cir. 2008) (quoting Harris v. Thigpen, 941 F.2d 1495, 1504 (11th
Cir. 1991)). Inadvertence or mere negligence in failing to provide adequate medical care
does not rise to the level of a constitutional violation. Farrow v. West, 320 F.3d 1235, 1243
(11th Cir. 2003). “[M]edical treatment violates the Eighth Amendment only when it is ‘so

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grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness.’” Harris, 941 F.2d at 1505 (quoting Rogers v. Evans, 792 F.2d 1052,
1058 (11th Cir. 1986)). Furthermore, deliberate indifference is not established where an
inmate received care but is unhappy with the treatment provided. Hamm v. DeKalb County,
774 F.2d 1567, 1575 (11th Cir.1985).
In this case, it is apparent that Plaintiff’s allegations do not state a colorable claim for
deliberate indifference to a serious medical need. A review of Plaintiff’s complaint details a
host of medical procedures, tests, and contacts with various medical professionals. Thus, it
is found that Plaintiff received medical care for his ailments and the care was adequate. As
such, Plaintiff’s claims that Defendants were deliberately indifferent to his medical needs
must be DISMISSED. For the same reasons, any claims of due process violations or cruel
and unusual punishment relating to his medical care and treatment must also be
DISMISSED.
2.

First Amendment Violation

As noted above, Plaintiff makes a claim that he suffered retaliation for complaining
about his medical care. (Compl. at 25.) A prisoner “is considered to be exercising his First
Amendment right of freedom of speech when he complains to the prison’s administrators
about the conditions of his confinement.” Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.
2008) (letter to warden “constituted a protected exercise of his free speech rights”); Farrow v.
West, 320 F.3d 1235, 1248 (11th Cir. 2003). A prisoner may thus state a First Amendment
claim by alleging (1) that he complained about the conditions of his confinement, (2) that he
was subsequently punished by prison officials because he made this complaint, and (3) that
the consequence he suffered was severe enough to likely deter a person of ordinary firmness
from making future complaints. Id. Plaintiff’s complaint wholly fails to establish what
retaliation he suffered or that it was severe enough to deter him from continuing to
complain. Plaintiff’s continued litigation belies his claims. Furthermore, a vague claim of
retaliation does not survive preliminary review. See Rosa v. Fla. Dep’t of Corr., 572 F. App’x
710, 716 (11th Cir. 2013) (“threadbare assertions of alleged constitutional violations, without
further factual support, are insufficient to state a claim for relief.”) (citation omitted).

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Construing Plaintiff’s complaint liberally, it is found that Plaintiff has failed to allege a
colorable retaliation claim. Thus, Plaintiff’s retaliation claim is hereby DISMISSED.
3.

Fourteenth Amendment Violation

Plaintiff’s equal protection claims also fail. Although Plaintiff contends that the
Defendants violated his right to equal protection of the laws when they denied him the same
medical care they have provided to other similarly situated inmates, he fails to support this
claim with facts. Plaintiff cites the GDOC Rules and Regulations, Chapter 125-4-4-.073,
which he contends clearly states that “all incarcerated citizens shall receive medical
treatment, as required, and not just some.” (Compl. at 26.) The Regulations do not say that.
They do, however, state that “[w]hen a person is committed to a correctional institution it
becomes the responsibility of the correctional authorities to provide the necessary health
care for the inmate. Medical and hospital care as required shall be provided for all inmates
assigned.” See GDOC Rules and Regulations Chapter 125-4-4-.01. Plaintiff’s complaint
reveals that the Defendants complied with the relevant Regulation. Plaintiff was medically
treated for his condition and was not treated differently than similarly situated inmates.
Thus, Plaintiff’s claim for violation of his right to equal protection of the laws is without
merit and must be DISMISSED.
4.

Breach of Contract

Plaintiff last contends that “when the Georgia Assembly made a law, O.C.G.A. § 425-2, appertaining to the medical care of incarcerated citizens in the State of Georgia, and
required the GDOC to provide that care, that law implied a contract.” (Compl. at 28.)
Plaintiff alleges that the contract was breached by the Defendants when they failed to
provide him adequate medical care. (Id.)
District courts “have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. District courts have
supplemental jurisdiction over all other claims, including state law claims, “that are so related
to claims in the action within such original jurisdiction that they form part of the same case
GDOC Rules and Regulations Chapter 125-4-4-.07 actually states that all inmates shall receive dental and
optical treatment including dentures and glasses, as required. Such treatment shall be provided irrespective of
the length of an inmate's sentence or the proximity of his discharge date.
3

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or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
However, a district court “may decline to exercise supplemental jurisdiction over a claim
under [28 U.S.C. § 1367(a) ] if . . . the district court has dismissed all claims over which it has
original jurisdiction[.]” 28 U.S.C. § 1367(c)(3).
As discussed above, Plaintiff’s federal law claims in this case are without merit.
Because “[b]oth comity and economy are served when issues of state law are resolved by
state courts,” it is recommended that the court decline to exercise supplemental jurisdiction
over any potential state law claims and dismiss those claims without prejudice. Rowe v. City of
Fort Lauderdale, 279 F.3d 1271, 1288 (11th Cir.2002) (“The argument for dismissing the state
law claims in order to allow state courts to resolve issues of state law is even stronger when
the federal law claims have been dismissed prior to trial.”). As such, it is found that any
state law claims of breach of contract found in Plaintiff’s Complaint are to be DISMISSED
without prejudice.
CONCLUSION
Having conducted a preliminary review of Plaintiff’s Complaint as required by 29
U.S.C. § 1915A(a), the Court finds that Plaintiff’s complaint against the Defendants should
be DISMISSED. For purposes of the three strikes provision of the Prison Litigation
Reform Act (PLRA), the Court determines that its decision in this case is a strike against
Plaintiff. See 28 U.S.C. § 1915(g) (counting as strikes any action or appeal in federal court
“that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted”).
SO ORDERED, this 18th day of September, 2014.
/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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