POWELL v. OWENS et al

Filing 28

ORDER ADOPTING 13 Report and Recommendations and DENYING 8 Motion for Preliminary Injunction. The Plaintiff's Eighth Amendment claims against Physician's Assistant Collette Nash, Nurse Harris (or Harrison), Nurse Willis, Nurse Worthy, John Doe #1 black male, and John Doe #2 white male and his First Amendment claims against Counselor Bostic, Counselor Hill, and Lieutenant Rawls are allowed to go forward. The other claims and Defendants are DISMISSED without prejudice. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 7/16/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WILLIAM H. POWELL,
Plaintiff,
v.
BRIAN OWENS, et al.,
Defendants.

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CIVIL ACTION NO. 5:14-CV-87 (MTT)

ORDER
This matter is before the Court on the Recommendation of Magistrate Judge
Stephen Hyles. (Doc. 13). After reviewing the complaint pursuant to 28 U.S.C.
§ 1915A, the Magistrate Judge recommends that only the Plaintiff’s (1) Eighth
Amendment claims against Physician’s Assistant Collette Nash, Nurse Harris (or
Harrison), Nurse Willis, Nurse Worthy, “John Doe #1 black male,” and “John Doe #2
white male” and (2) First Amendment claims against Counselor Bostic, Counselor Hill,
and Lieutenant Rawls be allowed to go forward. He further recommends denying the
Plaintiff’s motion for a preliminary injunction. (Doc. 8). The Plaintiff has objected to the
Recommendation. (Doc. 17). The Court has reviewed the Plaintiff’s objections and has
made a de novo determination of the portions of the Recommendation to which the
Plaintiff objects.
The Plaintiff objects to the dismissal of: (1) his Eight Amendment denial of
medical care claims against Medical Administrator Spikes, Warden Moody, and Warden
Hinton;1 (2) his Eighth Amendment claim against the ophthalmologist at Macon State

1
He apparently does not object to the dismissal of this claim against Warden McLaughlin.

Prison; (3) his Fourteenth Amendment claims against Warden McLaughlin, Counselor
Bostic, Counselor Hill, and Lieutenant Rawls; (4) his Eighth Amendment failure to
protect claims against Commissioner Owens, Warden McLaughlin, Warden Hinton,
Warden Moody, Captain Davis, Lieutenant Eaddie, and Unit Manager Bobbitt; and (5)
his claims against Defendants at Smith and Ware State Prisons.
As to the first objection, the Plaintiff contends that because the grievances and
letters he sent to these Defendants contained information demonstrating he was
receiving inadequate medical care and they failed to act, they were deliberately
indifferent. But the Court agrees that the Plaintiff has not made sufficient allegations to
support the required causal connection between the actions of these officials and the
alleged constitutional deprivation. Even if a prisoner’s letters to supervisory officials
detailing his denial of medical care plus the officials’ inaction can be a sufficient basis
for liability, it is not in this case. The complaint does not allege what the Plaintiff actually
said in his letters. Thus, he has not alleged sufficient facts to support a causal
connection between these officials’ conduct and his alleged constitutional deprivation.
As to the second objection, the only conduct the Plaintiff attributes to the
ophthalmologist at Macon State is that the ophthalmologist diagnosed him with
Keratoconus, provided him with a contact lens, told him he would request another
contact lens when the Plaintiff said he lost it, and referred him to a specialist. The
subsequent allegations regarding the contact lens deal with events occurring after the
Plaintiff was transferred from Macon State. Though the Plaintiff does allege he wrote
sick call requests and grievances detailing his need for a contact lens after his transfer
from Macon State, he does not allege in the complaint that the ophthalmologist at

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Macon State was aware of these complaints or that the same doctor was responsible
for care at the other two prisons. The Plaintiff states in his objection that the same
ophthalmologist oversaw his care at Macon State, Smith State, and Ware State, but this
is contrary to the allegations in his complaint.2 Thus, the Court agrees with the
Recommendation that this claim is properly dismissed.
As to the third objection, the Court agrees with the Recommendation that the
Plaintiff cannot assert a due process claim based on alleged interference with his ability
to file grievances. Thomas v. Warner, 237 F. App’x 435, 437-38 (11th Cir. 2007) (“We
agree with other circuits that have decided that a prisoner does not have a
constitutionally-protected liberty interest in an inmate grievance procedure.”). The
Magistrate Judge properly allowed only First Amendment retaliation claims based on
these allegations to go forward.
As to the fourth objection, the Court agrees the Eighth Amendment failure to
protect claims against Defendants Owens, McLaughlin, Hinton, Moody, Davis, Eaddie,
and Bobbitt are properly dismissed. The Plaintiff does allege slightly more detail than
noted in the Recommendation3 but not enough to show “a history of widespread abuse”
that is so “obvious, flagrant, rampant, and of continued duration” so as to put these
supervisors on notice of the need to correct the alleged deprivation. Harrison v.
Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (internal quotation marks and citations
omitted).

2
The complaint does allege the same outside specialist, Dr. Williams, continued to treat him.
3

For instance, he states there have been at least 60 attacks with knives since his incarceration
at Macon State. (Doc. 1 at 31).

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Finally, the Court agrees the claims against Defendants at Smith and Ware State
prisons are properly dismissed. Some of the Plaintiff’s allegations against these
Defendants do detail an ongoing failure to provide medical care for injuries that
occurred while the Plaintiff was at Macon State. However, many of the allegations deal
with an alleged failure to provide proper surgical aftercare for the Plaintiff’s cornea
transplant. According to the complaint, the surgery happened after the Plaintiff was
transferred.4 Thus, the Court agrees claims against Defendants at Smith and Ware
State prisons would more properly be brought in separate lawsuits. Because the
Plaintiff’s motion for a preliminary injunction relates to issues at Ware State Prison, it is
properly dismissed.
The Court has reviewed the Recommendation and the Plaintiff’s objections, and
the Court accepts and adopts the findings, conclusions, and recommendations of the
Magistrate Judge. The Recommendation is ADOPTED and made the Order of this
Court. Accordingly, the Plaintiff’s Eighth Amendment claims against Physician’s
Assistant Collette Nash, Nurse Harris (or Harrison), Nurse Willis, Nurse Worthy, “John
Doe #1 black male,” and “John Doe #2 white male” and his First Amendment claims
against Counselor Bostic, Counselor Hill, and Lieutenant Rawls are allowed to go
forward. The other claims and Defendants are DISMISSED without prejudice. The
Plaintiff’s motion for a preliminary injunction (Doc. 8) is DENIED.

4
The Plaintiff alleges he was transferred to Smith State in November 2012 and Ware State in
either May or June 2013. (Doc. 1 at 17, 22). He says his cornea transplant occurred on May
15, 2013. (Doc. 1 at 21).

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SO ORDERED, this 16th day of July, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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