MATTHEWS v. BUSH et al
ORDER granting 2 Motion to proceed in forma pauperis, REPORT AND RECOMMENDATION re 1 Complaint filed by MARK WEYMAN MATTHEWS recommending dismissal of claims against all defendants except Defendant Michael Rogers, M.D., ORDER Directing Service on Defendant Michael Rogers, M.D. Ordered by US Mag Judge Stephen Hyles on 9-30-13. (mpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MARK WEYMAN MATTHEWS,
Nurse Practitioner LISA BUSH, et. al.
ORDER & RECOMMENDATION
Plaintiff Mark Weyman Matthews, a state prisoner currently confined at
Washington State Prison in Davisboro, Georgia, filed this pro se civil rights action under
42 U.S.C. § 1983 and requests leave to proceed without prepayment of the $350.00 filing
fee or security therefor pursuant to 28 U.S.C. § 1915(a).
Based on Plaintiff's submissions, the Court finds that Plaintiff is presently unable to
pre-pay any portion of the filing fee. Plaintiff's Motion to Proceed in forma pauperis
(ECF No. 2) is thus GRANTED, and the initial partial filing fee required by 28 U.S.C.
§1915(b)(1) will be waived. The filing fee is not entirely waived, however; Plaintiff is
still obligated to pay the full filing fee, as is directed later in this Order. For this reason,
the Clerk of Court is DIRECTED to send a copy of this Order to the warden and/or
business manager of the facility in which Plaintiff is currently confined.
The undersigned has also now completed a preliminary review of Plaintiff’s
Complaint (ECF No. 1), pursuant to 28 U.S.C. § 1915A(a), and will allow Plaintiff’s
claims against Defendant Michael Rogers, M.D., to proceed. It is RECOMMENDED,
however, that Plaintiff’s claims against Defendants Bush, Chutkin, and Barrow - as well as
any claims against Defendants in their “official capacity” - be DISMISSED for failure to
state a claim. See 28 U.S.C. § 1915A(b)(1).
STANDARD OF REVIEW
When conducting preliminary screening pursuant to 28 U.S.C. § 1915A(a), the
district court must accept all factual allegations in the complaint as true. Brown v.
Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings, like the one in this case,
are also “held to a less stringent standard than pleadings drafted by attorneys” and will be
“liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998). A pro se prisoner’s pleading is, nonetheless, subject to dismissal prior to service if
the court finds that the complaint, when viewed liberally and in the light most favorable to
the plaintiff, fails to state a claim upon which relief may be granted. See 28 U.S.C.
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 U.S. 544, 555-56, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007). To state a cognizable claim, the allegations in the
complaint must also do more than “merely create a suspicion [of] a legally cognizable
right of action.” Id. at 555. “Threadbare recitals of the elements of cause of action,
supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
663, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Therefore, to survive a §1915A
preliminary review, a prisoner’s complaint must “raise the right to relief above the
speculative level” by alleging facts which create “a reasonable expectation” that discovery
will reveal the evidence necessary to prove a claim. See Twombly, 550 U.S. at 555-556.
ANALYSIS OF CLAIMS
The present action arises out of an alleged inadequate provision of medical care at
Washington State Prison. In the Complaint, Plaintiff alleges that he was misdiagnosed
and has not been provided adequate medical care for a chronic back condition. Plaintiff
allegedly filed multiple medical requests because of the pain he was experiencing and
informed each defendant that he was “in extreme pain and experiencing numbness” in his
leg and back.
According to the Complaint, Defendant Bush was responsible for Plaintiff’s initial
misdiagnosis and inadequate treatment in 2010 and thereafter continued to deny Plaintiff
prescribed medication and access to the prison’s physician, Defendant Michael Rogers,
until January 2011. Defendant Bush did, however, refer Plaintiff for treatment at the
Augusta State Medical Prison in December of 2010, where Plaintiff was examined by a
specialist, Defendant Dr. Chutkin.
At that time, Chutkin diagnosed Plaintiff with
“spondylolisthesis,” a condition that Plaintiff describes as a “chronic back condition”
which can only be corrected by surgery. Plaintiff alleges, however, that Dr. Chutkin
refused to provide Plaintiff with the surgery needed and instead prescribed new pain
medication. This still did not provide Plaintiff with relief. When Plaintiff returned to
Washington State Prison, Defendant Bush allegedly refused to provide him with the
proscribed pain medication and gave him another medication in its place.
According to Plaintiff, Defendant Bush left her employment at Washington State
Prison “on or about August through December 2011.” Following Defendant Bush’s
departure, Plaintiff was finally permitted to see Defendant Dr. Michael Rogers. The
Complaint alleges that Dr. Rogers was, by that time, aware of Plaintiff’s diagnosis and
severe, chronic pain. He nonetheless refused to provide Plaintiff with medical treatment,
allegedly stating that he did “not physically examine inmates and . . . was not going to
examine” Plaintiff’s back. (See Compl. at p. 10). Dr. Rogers also allegedly refused to
renew Plaintiff’s bottom bunk profile after Plaintiff informed him that the pain and
numbness sometimes caused him to fall off the top bunk. Plaintiff filed a grievance about
this “inadequate medical treatment” in March of 2012, which was thereafter denied by
Defendant Warden Donald Barrow on May 27, 2012.
When construed liberally and in his favor, Plaintiff’s allegations are sufficient to
allow his §1983 claims against Dr. Michael Rogers to go forward. It is thus ORDERED
that service be made on this defendant and that he file an Answer, or such other response as
may be appropriate. Defendant is reminded of the duty to avoid unnecessary service
expenses, and of the possible imposition of expenses for failure to waive service pursuant
to Rule 4(d).
However, to the extent that Plaintiff has attempted to state claims for monetary
damages against any individually named defendant in his “official capacity,” it is
RECOMMENDED that these claims be DISMISSED, under 28 U.S.C. § 1915A(b)(1).
A lawsuit against state officials in their “official capacities” is no different from a suit
against the government itself; such claims are barred by the Eleventh Amendment. Smith v.
Fla. Dep't of Corr., 318 F. App'x 726, 728 (11th Cir. 2008) (citing Powell v. Barrett, 496
F.3d 1288, 1308 & n. 27 (11th Cir. 2007)).
It is also RECOMMENDED that Plaintiff’s claims against Defendants Bush and
Chutkin be DISMISSED without prejudice. Plaintiff’s claims against these defendants
arise out of actions allegedly occurring between July 2010 and January 2011.
Complaint alleges that Plaintiff was misdiagnosed and refused treatment by Defendant
Bush during 2010, that Chutkin refused to provide the needed surgery in December of
2010, and that Bush last denied him proscribed medication and refused his referral requests
in January of 2011. Section 1983 claims have a two year statute of limitations in Georgia.
See Owens v. Okure, 488 U.S. 235, 236 (1989) (citing Wilson v. Garcia, 471 U.S. 261,
(1985)); O.C.G.A. § 9-3-33 (1982). The statute of limitations for Plaintiff’s claims
against Defendants Bush and Chutkin thus expired no later than January of 2013.
District courts generally deem a prisoner complaint filed on the date the plaintiff
signs the document and delivers it to prison officials for mailing. See Garvey v. Vaughn,
993 F.2d 776, 783 (11th Cir. 1993). In this case, Plaintiff signed but did not date the
Complaint. However, Plaintiff’s inmate account certification (ECF No. 2) shows that it
was issued on September 4, 2013. The Complaint, which was mailed in the same
envelope with this copy of Plaintiff’s account certification, was then received by this Court
on September 9, 2013. This suggests that Plaintiff’s Complaint was submitted to prison
officials for mailing on or around September 4, 2013, which is well beyond the expiration
of the statute of limitations in January of 2013.1 These claims were therefore filed outside
of the statute of limitations.
Plaintiff has also failed to state a claim against Warden Donald Barrow. Plaintiff’s
only allegation against the Warden is that he denied Plaintiff’s grievance in May of 2012.
To state a claim against a supervisory official, however, a prisoner must allege that the
supervisor “personally participated in the alleged constitutional violation or that there is a
causal connection between the actions of the supervising official and the alleged
constitutional deprivation.” H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1086-87 (11th Cir.
1986). The mere fact that a prison official denies a grievance or otherwise fails to
investigate a prisoner’s allegations is not enough to establish “personal involvement” in the
alleged constitutional violation. See Larson v. Meek, 240 F. App’x 777, 780 (10th Cir.
2007); Pride v. Danberg, No. 08–848–RK, 2009 WL 151535, *3 (D. Del. Jan.22, 2009).
See also, Wright v. City of Ozark, 715 F.2d 1513, 1516 (11th Cir. 1983) (“the failure to
investigate an accident/incident, without more, does not violate any constitutional rights”).
1 Even if the undersigned was to assume that Plaintiff’s Complaint could have been placed in the
hands of prison officials and held for as long as a month or two before the date shown on the
account certification, it is still clear that the Complaint was not filed within two years of the events
It is thus RECOMMENDED that Plaintiff’s claims against Warden Donald Barrow be
DISMISSED without prejudice.
Plaintiff may serve and file written objections to the undersigned’s
recommendations with the United States District Judge within fourteen (14) days after
being served a copy of this Order. See 28 U.S.C. § 636(b)(1).
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall keep the Clerk of this Court and
all opposing attorneys and/or parties advised of their current address. Failure to promptly
advise the Clerk of a change of address may result in the dismissal of a party’s pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff is also 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 similarly 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 determines that discovery has been completed and that all motions have been
disposed of or the time for filing dispositive motions has passed.
FILING AND SERVICE OF MOTIONS,
PLEADINGS, AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and
correspondence with the Clerk of Court. A party need not serve the opposing party by
mail if the opposing party is represented by counsel.
In such cases, any motions,
pleadings, or correspondence shall be served electronically at the time of filing with the
Court. If any party is not represented by counsel, however, it is the responsibility of each
opposing party to serve copies of all motions, pleadings, and correspondence upon the
unrepresented party and to attach to said original motions, pleadings, and correspondence
filed with the Clerk of Court 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.
Plaintiff shall not commence discovery until an answer or dispositive motion has
been filed on behalf of Defendants from whom discovery is sought by Plaintiff.
Defendants 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
Plaintiff’s deposition may be taken at any time during the time period
hereinafter set out, provided that prior arrangements are made with her custodian.
Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal
of her lawsuit under Rule 37 of the Federal Rules of Civil Procedure.
It is hereby ORDERED that discovery shall be completed within 90 days of the
date of filing of an answer or dispositive motion by Defendants (whichever comes first)
unless an extension is otherwise granted by the Court upon a showing of good cause
therefor or a protective order is sought by Defendants and granted by the Court. This
90-day period shall run separately as to each Defendant beginning on the date of filing of
each Defendant’s answer or dispositive motion (whichever comes first). The scheduling
of a trial 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 FIFTEEN (15) requests to each party. No party is required to
respond to any request which exceed these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
Dismissal of this action or requests for judgment will not be considered in the
absence 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.
DIRECTIONS TO CUSTODIAN OF PLAINTIFF
It is hereby ORDERED that the Warden of the institution wherein Plaintiff is
incarcerated, or the Sheriff of any county where 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 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.
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 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. Plaintiff’s Complaint is subject to
dismissal if he has the ability to make monthly payments and fails to do so.
SO ORDERED, this 30th day of September, 2013.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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