Pike v. Georgia Department of Corrections et al

Filing 5

ORDER AND RECOMMENDATION re 1 Complaint filed by Johnny P. Pike. Ordered by U.S. Mag Judge Claude W. Hicks, Jr. on 1/20/10. (CWH)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION JOHNNY P. PIKE, Plaintiff VS. GEORGIA DEPT. OF CORRECTIONS, Dr. N. W. CHISM, Dr. IKECHUKWU AKUNWANNE, and Dr. DWAYNE AYERS, Defendants

NO. 5:10-CV-15 (HL)
PROCEEDINGS UNDER 42 U.S.C. § 1983 BEFORE THE U. S. MAGISTRATE JUDGE

ORDER AND RECOMMENDATION
Plaintiff JOHNNY P. PIKE, an inmate at Calhoun State Prison in Morgan, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has paid the initial partial filing fee as ordered by the Court and is responsible for the remainder of the filing fee as described in detail below.

I. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 1915A, a federal court is required to dismiss a prisoner's complaint against a governmental entity or officer or employee of a governmental entity at any time if the court determines that the action "(1) is 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 "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint may be dismissed for failure to state a claim on which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Scheuer v. Rhodes, 416 U.S. 232 (1974).

In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege two elements. First, the plaintiff must allege that an act or omission deprived him of a right, privilege or immunity secured by the Constitution of the United States. See Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987). Second, the plaintiff must allege that the act or omission was committed by a person acting under color of state law. Id.

II. STATEMENT AND ANALYSIS OF PLAINTIFF'S CLAIMS Plaintiff Pike maintains that he suffers from neck and back pain. He states that beginning in 2006, Dr. Chism prescribed 1800 mg of ibuprofen per day for these pains. Plaintiff claims that Dr. Chism continued this medication for approximately one year until he was transferred to Baldwin State Prison in December of 2007. At Baldwin State Prison, Dr. Akunwanne continued the 1800 mg of ibuprofen per day for approximately two months. According to plaintiff, Dr. Akunwanne told him that the ibuprofen could damage his kidney and liver and, therefore, he changed his medication to salsalate. Plaintiff claims that Dr. Akunwanne knew, or should have known, that salsalate would also damage his kidney and/or liver. According to plaintiff, Dr. Akunwanne promised that he would send him to Augusta State Medical Prison in February of 2008 to make sure that plaintiff suffered from no kidney or liver damage. However, Dr. Akunwanne never followed through on this, and plaintiff continued to take the salsalate until he was transferred to Calhoun State Prison in February of 2008. Moreover, plaintiff states that Dr. Akunwanne, like Dr. Chism before him, never attempted to address the cause of the back and neck pain.

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The physician at Calhoun State Prison, Dr. Ayers, continued the salsalate until June of 2009 when he informed plaintiff that salsalate "causes kidney damage" and reduced the amount that plaintiff took each day from 3000 mg to 2000 mg. According to plaintiff, Dr. Ayers sent plaintiff to Augusta State Medical Prison in August of 2009, and a specialist informed him that he had irreparable kidney damage and discontinued the use of salsalate "because it was causing more damage." Plaintiff has named DRS. CHISM, AKUNWANNE, and AYERS as defendants. He has also named the Georgia Department of Corrections as a defendant. "[T]he Eleventh Amendment bars a §1983 action against a state and its agencies `regardless of whether a plaintiff seeks monetary damages or prospective injunctive relief'." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Maolud v. Sikes, No. 1:06-CV-1043 (JEC), 2006 U.S. Dist LEXIS 22734, at *3-4 (N. D. Ga. Oct. 24, 2006 )(quoting Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989)). Consequently, IT IS RECOMMENDED that the Georgia Department of Corrections and be DISMISSED from this action. Under 28 U.S.C. § 636(b)(1), plaintiff may serve and file written objections to this recommendation with the District Judge to whom this case is assigned WITHIN FOURTEEN (14) DAYS after being served with a copy of this Order. Additionally, the Court realizes potential statute of limitations issues in relation to claims against Dr. Chism. However, this is by no means clear at this stage in the litigation. "To dismiss a prisoner's complaint as time-barred prior to service, it must `appear beyond a doubt from the complaint itself that [the plaintiff] can prove no set of facts which would avoid a statute of limitations bar'." Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003)(quoting Leal v. Ga. Dep't of Corrections, 254 F.3d 1276, 1280 (11th Cir. 2001). After a review of the complaint, the Court cannot determine "beyond a doubt" that plaintiff's claims against Dr. Chism would be barred by the statute of limitations. Id.

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Based on the above, the Court cannot find that the claims against Dr. N. W. Chism, Dr. Ikechukwu Akunwanne, and Dr. Dwayne Ayers are wholly frivolous. This action shall go forward against these three defendants. Accordingly, IT IS ORDERED AND DIRECTED that service be made as provided by law upon defendants DRS. CHISM, AKUNWANNE, and AYERS ; that a WAIVER OF REPLY, an ANSWER or such other response as may be appropriate under Rule 12 of the FEDERAL RULES OF CIVIL PROCEDURE, 28 U.S.C. §1915, and the Prison Litigation Reform Act be filed herein by said defendant(s) as required and permitted by law. It is further ORDERED AND DIRECTED that a copy of this order be served upon plaintiff's custodian, if any.

DUTY TO ADVISE OF ADDRESS CHANGE During the pendency of this action, each party shall at all times keep the Clerk of this court and all opposing attorneys and/or parties advised of his current address. FAILURE TO

PROMPTLY ADVISE THE CLERK OF ANY CHANGE OF ADDRESS MAY RESULT IN THE DISMISSAL OF A PARTY'S PLEADINGS FILED HEREIN!

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DUTY TO PROSECUTE ACTION Plaintiff is advised that he must diligently prosecute his complaint or face the possibility that

it will be dismissed under Rule 41(b) of the FEDERAL RULES OF CIVIL PROCEDURE for failure to prosecute. Defendants are advised that they are expected to diligently defend all allegations made against them and to file timely dispositive motions as hereinafter directed. This matter will be set down for trial when the court determine that discovery has been completed and all motions have been disposed of or the time for filing dispositive motions has passed.

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FILING AND SERVICE OF MOTIONS, PLEADINGS, DISCOVERY AND CORRESPONDENCE It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of court; to serve copies of all motions, pleadings, discovery, and correspondence (including letters to the Clerk or to a judge) upon opposing parties or counsel for opposing parties if they are represented; and to attach to said original motions and pleadings filed with the Clerk a
CERTIFICATE OF SERVICE indicating who has been served and where (i.e., at what address), when

service was made, and how service was accomplished (i.e., by U. S. Mail, by personal service, etc.). THE CLERK OF COURT WILL NOT SERVE OR FORWARD COPIES OF SUCH MOTIONS, PLEADINGS, AND CORRESPONDENCE ON BEHALF OF THE PARTIES!

DISCOVERY PLAINTIFF(S) SHALL NOT COMMENCE DISCOVERY UNTIL AN ANSWER OR DISPOSITIVE MOTION HAS BEEN FILED ON BEHALF OF THE DEFENDANT(S) FROM WHOM DISCOVERY IS SOUGHT BY THE PLAINTIFF(S). THE DEFENDANT(S) SHALL NOT COMMENCE DISCOVERY UNTIL SUCH TIME AS AN ANSWER OR DISPOSITIVE MOTION HAS BEEN FILED. Once an answer or dispositive motion has been filed, the parties are authorized to seek discovery from one another as provided in the FEDERAL RULES
OF

CIVIL PROCEDURE. The

deposition of the plaintiff, a state/county prisoner, may be taken at any time during the time period hereinafter set out provided prior arrangements are made with his/her custodian.

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IT IS HEREBY ORDERED that discovery (including depositions and interrogatories) shall be completed WITHIN 90 DAYS from the date of filing of an ANSWER or DISPOSITIVE MOTION by the defendant(s), unless an extension is otherwise granted by the court upon a showing of good cause therefor or a protective order is sought by the defendants and granted by the court. This 90 DAY period shall run separately as to each plaintiff and each defendant beginning on the date of filing of each defendant's answer/dispositive motion. The scheduling of a trial herein may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline. DISCOVERY MATERIALS SHALL NOT BE FILED WITH THE CLERK OF COURT. NO
PARTY SHALL BE REQUIRED TO RESPOND TO ANY DISCOVERY NOT DIRECTED TO HIM OR SERVED UPON HIM BY THE OPPOSING COUNSEL/PARTY!

The undersigned incorporates herein those parts of the Local

Rules imposing the following limitations on discovery: except with written permission of the court first obtained,
INTERROGATORIES

may not exceed TWENTY-FIVE (25) to each party,

REQUESTS FOR

PRODUCTION OF DOCUMENTS AND THINGS under Rule 34 of the FEDERAL RULES OF CIVIL PROCEDURE

may not exceed TEN (10) requests to each party, and REQUESTS FOR ADMISSIONS under Rule 36 of the FEDERAL RULES OF CIVIL PROCEDURE may not exceed TEN (10) requests to each party. No party shall be required to respond to any such requests which exceed these limitations.

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REQUESTS FOR DISMISSAL AND/OR JUDGMENT Dismissal of this action or requests for judgment will not be considered by the court absent the

filing of a SEPARATE MOTION therefor accompanied by a brief/memorandum of law citing supporting authorities. DISPOSITIVE MOTIONS should be filed at the earliest time possible, but in any event no later than THIRTY (30) DAYS after the close of discovery unless otherwise directed by the court. 6

DIRECTIONS TO CUSTODIAN OF PLAINTIFF Following the payment of the required initial partial filing fee or the waiving of the payment of same, the WARDEN of the institution wherein plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor custodians, shall each month cause to be remitted to the Clerk of this court TWENTY PERCENT (20%) of the preceding month's income credited to plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act, plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. IT IS FURTHER ORDERED AND DIRECTED that collection of monthly payments from plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.

PLAINTIFF'S OBLIGATION TO PAY FILING FEE Pursuant to provisions of the Prison Litigation Reform Act, in the event plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; plaintiff shall continue to remit monthly payments as required by the Prison Litigation Reform Act. Collection from the plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event plaintiff is released from custody and fails to remit payments. In addition, plaintiff's complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so.

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ELECTION TO PROCEED BEFORE THE UNITED STATES MAGISTRATE JUDGE Under Local Rule 72, all prisoner complaints filed under provisions of 42 U.S.C. §1983 are referred to a full-time United States Magistrate Judge for this district for consideration of all pretrial matters. In addition, 28 U.S.C. §636(c)(1) authorizes and empowers full-time magistrate judges to conduct any and all proceedings in a jury or nonjury civil matter and to order the entry of judgment in a case upon the written consent of all of the parties. Whether the parties elect to proceed before a magistrate judge or retain their right to proceed before a U. S. district judge is strictly up to the parties themselves. After the filing of responsive pleadings by the defendants, the Clerk of court is directed to provide
ELECTION FORMS ELECTION FORMS,

to the parties and/or to their legal counsel, if represented. Upon receipt of the each party shall cause the same to be executed and returned to the Clerk's Office
ELECTION FORMS

WITHIN FIFTEEN (15) DAYS. Counsel may execute

on behalf of their clients

provided they have such permission from their clients. However, counsel must specify on the ELECTION
FORMS

on whose behalf the form is executed. SO ORDERED AND RECOMMENDED, this 20th day of January, 2010.

CLAUDE W. HICKS, JR. UNITED STATES MAGISTRATE JUDGE

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ADDENDUM TO ORDER

NOTICE TO ALL PARTIES
PURSUANT TO THE COURT'S ORDER REGARDING DISCOVERY SET OUT ABOVE, NO DISCOVERY SHALL BE PERMITTED IN THIS CASE UNTIL AN ANSWER OR DISPOSITIVE MOTION (e.g., MOTION TO DISMISS, MOTION FOR SUMMARY JUDGMENT, MOTION FOR JUDGMENT ON THE PLEADINGS) HAS BEEN FILED BY THE DEFENDANT(S). PURSUANT TO THE FEDERAL RULES OF CIVIL PROCEDURE, DISCOVERY (DEPOSITIONS, INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS, REQUESTS FOR ADMISSIONS, ETC., AND RESPONSES THERETO) SHALL NOT BE FILED WITH THE CLERK OF COURT. NOTE THAT THIS IS A CHANGE IN THE PROCEDURE HERETOFORE FOLLOWED IN THIS DISTRICT. DO NOT FILE ANY DISCOVERY WITH THE COURT UNLESS YOU ARE SPECIFICALLY DIRECTED TO DO SO BY THE COURT OR UNLESS FILING IS NECESSARY TO SUPPORT OR CONTEST A MOTION TO COMPEL DISCOVERY, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION. THE CLERK IS DIRECTED TO RETURN ANY SUBMITTED DISCOVERY TO THE PARTY SUBMITTING IT UNLESS IT IS FILED PURSUANT TO AN ORDER OF THE COURT OR IN SUPPORT OF A MOTION TO COMPEL, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION.
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