CARSWELL v. ROGERS et al

Filing 19

ORDER ADOPTING in part and REJECTING in part 8 Report and Recommendations. The claims against Dr. Ayers, Dr. McClarin, Dr. Rogers, the Eighth Amendment claim against Deputy Warden Fleming, the First Amendment retaliation claim against Sergeant Harrison, and the Eighth Amendment claim against Warden Barrow based on his failure to take action in response to the Plaintiff's delayed cataract surgery are allowed to go forward. However, all other claims a sserted are DISMISSED without prejudice. It is therefore ORDERED that service be made on Deputy Warden Glenn Fleming, Warden Barrow, and Sergeant Harrison and that they file an answer or such other response as may be appropriate under Fed. R. Civ. P . 12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. The Defendants are also reminded of the duty to avoid unnecessary service expenses and of the possible imposition of expenses for failure to waive service. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 4/13/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMES JACKSON CARSWELL,

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Plaintiff,
v.
Doctor MICHAEL ROGERS, et al.,
Defendants.

CIVIL ACTION NO. 5:14-CV-437 (MTT)

ORDER
Before the Court is the Order and Recommendation of Magistrate Judge Stephen
Hyles. (Doc. 8). After reviewing the Plaintiff’s complaint pursuant to 28 U.S.C. §
1915A, the Magistrate Judge recommends allowing the Plaintiff’s claims against Dr.
Ayers, Dr. McClarin, and Dr. Rogers to go forward and dismissing the Plaintiff’s claims
against Deputy Warden Glenn Fleming and Sergeant Harrison. The Plaintiff has
objected to the Recommendation. (Doc. 10). The Court has reviewed the objection and
has made a de novo determination of the portions of the Recommendation to which the
Plaintiff objects. The Plaintiff has also filed a timely amended complaint. (Doc. 13);
Fed. R. Civ. P. 15(a)(1). Because the Plaintiff is a prisoner “seek[ing] redress from a[n]
… officer or employee of a governmental entity,” the Court reviews the amended
complaint pursuant to 28 U.S.C. § 1915A.

I.

DISCUSSION

A. Objection
1. Fleming
The Plaintiff first objects to the dismissal of Deputy Warden Fleming. The
Plaintiff asserts an Eighth Amendment claim1 against Fleming based on Fleming’s
failure to act to provide him proper medical treatment after the Plaintiff filed a grievance
and discussed his medical problems with Fleming. According to the complaint, Fleming
had a duty to provide adequate medical treatment by virtue of his position but failed to
provide the Plaintiff with treatment and denied his grievance on “frivolous grounds.”
(Doc. 1, ¶ 36). The Magistrate Judge recommends dismissing this claim because the
complaint does not allege what “problems” the Plaintiff discussed with Fleming or when
he discussed them. Additionally, the Magistrate Judge found the allegations do not
suggest the Plaintiff’s condition was “so obviously dire” that a lay prison official would
have realized medical personnel were denying him needed care. Thus, the Magistrate
Judge concludes the Plaintiff has failed to show a causal connection between Fleming’s
conduct and a violation of the Plaintiff’s rights.
In his objection, the Plaintiff points out that the complaint alleges he filed a
grievance regarding “the foregoing continuous denial of adequate treatment”—
“foregoing” referring to the previous 35 paragraphs of his complaint. He also states he
discussed his medical problems with Fleming after he was transferred to Washington
State Prison in June 2013. Though the Plaintiff does not explicitly allege the timing of

1

Though the Plaintiff generally alleges all the Defendants retaliated against him for filing grievances or
otherwise “voicing his complaints,” he does not make any specific allegations of retaliation against
Defendant Fleming. (Doc. 1, ¶ 38). Thus, to the extent the Plaintiff attempts to assert a First Amendment
retaliation claim against Fleming, he has failed to state a claim.

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the grievance or discussion with Fleming in his complaint, he does allege that he was
transferred to Washington State Prison in June 2013 and that he filed the grievance at
Washington State Prison. (Doc. 1, ¶¶ 27, 36).
As the Recommendation points out, the Plaintiff alleges he was under Dr.
Rogers’s care at Washington State Prison. In the first 35 paragraphs of his complaint,
the Plaintiff alleges, among other things, that Dr. Rogers refused to provide the Plaintiff
with surgery for both his hernia and “bleeding mole,” which was diagnosed as “basal cell
cancer,” for months. (Doc. 1, ¶¶ 8, 12, 25, 26, 27, 29-33).
To state an Eighth Amendment denial-of-medical-care claim, the Plaintiff must
show that: (1) he had an objectively serious medical need; (2) the prison official acted
with deliberate indifference to that need; and (3) the injury was caused by the prison
official’s wrongful conduct. Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007).
To show the prison official acted with deliberate indifference, the Plaintiff must establish
“(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than [gross] negligence.” Id. at 1327 (alteration in original)
(internal quotation marks and citation omitted). Liberally construing the Plaintiff’s
complaint, it appears the Plaintiff informed Fleming that Dr. Rogers was refusing to
provide the Plaintiff with medical treatment for two serious medical conditions, and
Fleming took no action. At this stage, the Court cannot say that the Plaintiff’s report of
his conditions and lack of treatment to Fleming would not have alerted him to a risk of
serious harm. Cf. Goebert, 510 F.3d at 1327-28 (prison official found to have subjective
knowledge of serious medical need based on prisoner’s detailed complaint). Therefore,
the Court will allow the Plaintiff’s claim against Fleming to proceed.

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2. Harrison
The Plaintiff also objects to the dismissal of Sergeant Harrison. He contends the
Magistrate Judge erred in construing two letters he filed regarding actions taken by
Sergeant Harrison as amendments to his complaint and that he intends to file an
amendment pursuant to the Federal Rules of Civil Procedure.2 He has since filed an
amended complaint. (Doc. 13). The Magistrate Judge recommends dismissing the
retaliation claim against Sergeant Harrison, based on the Plaintiff’s letters, because he
did not allege a causal connection between Sergeant Harrison’s conduct and the filing
of this lawsuit. In the amended complaint, the Plaintiff appears to allege Sergeant
Harrison retaliated against him for complaining about Sergeant Harrison’s prior
conduct—not filing this lawsuit.
The Plaintiff alleges that on December 23, 2014, Sergeant Harrison yelled a
racially derogatory statement at him because he was moving too slowly during
breakfast. (Doc. 13, ¶¶ 4, 5). The Plaintiff contends this incident “caused racial unrest
in the cafeteria and the dormitory and subjected plaintiff to harassment and the
possibility of harm.” (Doc. 13, ¶ 7). Afterwards, the Plaintiff “prepared a statement”
regarding Sergeant Harrison’s conduct and sent the statement to “Warden Donald
Barrow, Internal Affairs, The Southern Center for Human Rights, this Court, and Mrs.
Angie Holt.” (Doc. 13, ¶ 9).
On January 14, 2015, Sergeant Harrison again yelled at the Plaintiff in the
cafeteria in front of approximately 95 other inmates: “[Y]a’ll got a snitch-you watch the
next one to talk, he a snitch-he [ ] go to medical, then he walk through to the Warden,
he snitch-he in y’all dorm-y’all need to get him out-y’all need to watch him- he going to
2

Sergeant Harrison was not named in the initial complaint.

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snitch on you- y’all know snitches need to get stiches.” (Doc. 13, ¶ 10). The Plaintiff
alleges this statement “created extreme racial unrest, humiliation, threats, etc., and
placed plaintiff in position to be assaulted by the other prisoners who knew of plaintiff’s
prior incident with Sgt. Harrison and his filed statement/complaint.” (Doc. 13, ¶ 11).
Again at breakfast on January 15, 2015, Sergeant Harrison yelled, “[Y]’all still got the
snitch in your dorm-get him out or I’m going to make y’all eat last until you get rid of the
snitch.” (Doc. 13, ¶ 12). This statement also allegedly “subjected [the Plaintiff] to racial
unrest, humiliation, threats, etc. and placed him in a position to be assaulted.” (Doc. 13,
¶ 13). He also contends “the retaliation has escalated to the point of him being
assaulted/killed.” (Doc. 13, ¶ 35).
To state a First Amendment retaliation claim, the Plaintiff must show: “first, that
his speech or act was constitutionally protected; second, that the defendant’s retaliatory
conduct adversely affected the protected speech; and third, that there is a causal
connection between the retaliatory actions and the adverse effect on speech.” Douglas
v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) (internal quotation marks and citation
omitted). To show the conduct had an adverse effect on protected speech, the Plaintiff
must show “the [official’s] allegedly retaliatory conduct would likely deter a person of
ordinary firmness from engaging in such speech.” O’Bryant v. Finch, 637 F.3d 1207,
1212 (11th Cir. 2011) (alteration in original) (internal quotation marks and citation
omitted). However, “a plaintiff need not show that his own exercise of First Amendment
rights [has] been chilled.” Pittman v. Tucker, 213 F. App’x 867, 870 (11th Cir. 2007)
(emphasis added).

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At this stage, the Court finds the Plaintiff has sufficiently alleged a causal
connection between his reporting Sergeant Harrison’s December 23 conduct and
Sergeant Harrison directing other inmates to harm the Plaintiff on January 14 and 15.
Therefore, the Court will allow the First Amendment retaliation claim against Sergeant
Harrison to go forward.3
B. Amended Complaint
Because the Plaintiff is a prisoner seeking redress from prison officials, the Court
must dismiss the complaint if it “(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.” 28 U.S.C. §1915A(b).
1. Harrison
In addition to the retaliation claim, the Plaintiff also attempts to assert an Eighth
Amendment claim against Sergeant Harrison. In order to state a claim for an Eighth
Amendment violation, the Plaintiff must make “an objective showing of a deprivation or
injury that is sufficiently serious to constitute a denial of the minimal civilized measure of
life’s necessities and a subjective showing that the official had a sufficiently culpable
state of mind.” Thomas v. Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010) (internal
quotation marks and citation omitted). The Plaintiff’s allegations regarding Sergeant
Harrison’s comments do not meet the objective prong because, at most, they amount to
verbal abuse. There is no indication Sergeant Harrison actually ensured inmates
harmed the Plaintiff. See Hernandez, 281 F. App’x at 866 (“[A]llegations of verbal
3

Although it is likely this claim will be subject to dismissal for failure to exhaust administrative remedies,
failure to exhaust is an affirmative defense that inmates are not required to plead in their complaint. See
Hernandez v. Fla. Dep’t of Corr., 281 F. App’x 862, 867-68 (11th Cir. 2008); see also Bingham v.
Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (“A complaint may be dismissed if an affirmative defense,
such as failure to exhaust, appears on the face of the complaint.”).

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abuse and threats by the prison officers d[o] not state a claim because the defendants
never carried out these threats and verbal abuse alone is insufficient to state a
constitutional claim.”).
2. Warden Barrow
The Plaintiff adds Warden Barrow as a defendant in his amended complaint. He
alleges that before he filed this lawsuit he was allowed to have the over-the-counter
medication “Herblax” mailed to him and that this medication had proven effective for his
“condition.” (Doc. 13, ¶¶ 15, 16). After the Plaintiff filed this lawsuit, Warden Barrow
allegedly ordered mailroom officials not to deliver the Herblax to the Plaintiff. (Doc. 13,
¶ 17).
The Plaintiff also alleges he informed Warden Barrow of Dr. Rogers’s conduct,
but Warden Barrow “refused to take action.” (Doc. 13, ¶ 26).4 Dr. Rogers allegedly
discontinued the Plaintiff’s “bran fiber H.S. snack,” which he had prescribed for the
Plaintiff’s “condition,” after the Plaintiff filed this lawsuit. (Doc. 13, ¶¶ 18, 19). Dr.
Rogers also allegedly discontinued the Plaintiff’s Colace and lactulose, two medications
prescribed for his “condition,” after the Plaintiff filed this lawsuit. (Doc. 13, ¶¶ 20, 21).
Additionally, eye doctors allegedly told the Plaintiff before filing his complaint that
he needed surgery to correct his “plaque cataracts” or he would become blind by
approximately March 2015. (Doc. 13, ¶ 23). He alleges Dr. Rogers “was advised of the
eye condition by the specialist and told plaintiff he was submitting documentation to

4

The Plaintiff alleges he notified Warden Barrow of “the foregoing,” i.e., paragraphs 1-25 of his amended
complaint, and Warden Barrow took no action. Because there is nothing to suggest Warden Barrow was
on notice the Plaintiff might actually be harmed by other inmates, any claim against Warden Barrow
regarding Sergeant Harrison’s conduct is properly dismissed. The Plaintiff has asserted no causal
connection between Warden Barrow and Sergeant Harrison’s alleged retaliatory statements.

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have the surgery performed,” but since the Plaintiff filed this lawsuit, “the surgery has
been delayed/denied to the point plaintiff is nearly blind.” (Doc. 13, ¶¶ 24, 25).5
The Plaintiff has asserted a claim against Warden Barrow for retaliation in
violation of the First Amendment. However, the Plaintiff has not alleged facts showing
Warden Barrow’s actions were taken because of the Plaintiff’s lawsuit. Warden Barrow
was not named as a defendant in the initial complaint, and there are no other
allegations suggesting he took these actions because the Plaintiff filed this lawsuit
beyond temporal proximity. See Thomas v. Lawrence, 421 F. App’x 926, 929 (11th Cir.
2011) (upholding dismissal of retaliation claims because defendants were not named in
grievance and plaintiff did not show they had a reason to retaliate against him).
The Plaintiff has also asserted a claim against Warden Barrow for being
deliberately indifferent to his “safety and health” in violation of the Eighth Amendment.
The Plaintiff has not alleged sufficient facts to show that either Warden Barrow’s denial
of the Plaintiff’s Herblax or his refusal to take action when Dr. Rogers discontinued
treatment for the Plaintiff’s unspecified “condition” constitutes deliberate indifference to
a serious medical need.6 There are no allegations suggesting Warden Barrow was
subjectively aware of a risk of serious harm if the Plaintiff’s “condition” did not continue
to be treated.

5

The Plaintiff also alleges that on January 22, 2015, he was taken to Jefferson County Hospital because
he was experiencing severe chest pain and was “told his condition was associated with his stress.” (Doc.
13, ¶ 22). It is not clear if this is the same “condition” referred to earlier in the amended complaint, nor is
it clear which Defendant or claim this allegation relates to.

6

The Plaintiff’s original complaint alleges he was prescribed Colace and lactulose to prevent his hernia
from worsening but also suggests the medication was for his irritable bowel syndrome. (Doc. 1, ¶¶ 18,
21-23). He also alleges he received surgery for his hernia in October 2014, and there is no suggestion he
still suffers from a hernia. (Doc. 1, ¶ 27).

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As to the Plaintiff’s claim that Warden Barrow refused to take action when he
learned Dr. Rogers was delaying the Plaintiff’s cataract surgery, the Court cannot say at
this point that these allegations, when liberally construed in the Plaintiff’s favor, are
insufficient to state a claim. Thus, this claim against Warden Barrow will be allowed to
proceed.
3. Rogers
The Plaintiff also asserts an additional First Amendment retaliation claim and
additional Eighth Amendment deliberate-indifference-to-medical-needs claims against
Dr. Rogers. At this point, the Court cannot say these allegations are insufficient to state
a claim. Therefore, Dr. Rogers should address the allegations in the Plaintiff’s amended
complaint in his answer and/or motion, which he has now filed. (Doc. 16).
II.

CONCLUSION

The Court has reviewed the Recommendation, and the Recommendation is
ADOPTED in part and REJECTED in part. The claims against Dr. Ayers, Dr.
McClarin, Dr. Rogers, the Eighth Amendment claim against Deputy Warden Fleming,
the First Amendment retaliation claim against Sergeant Harrison, and the Eighth
Amendment claim against Warden Barrow based on his failure to take action in
response to the Plaintiff’s delayed cataract surgery are allowed to go forward. However,
all other claims asserted are DISMISSED without prejudice.
It is therefore ORDERED that service be made on Deputy Warden Glenn
Fleming, Warden Barrow, and Sergeant Harrison and that they file an answer or such
other response as may be appropriate under Fed. R. Civ. P. 12, 28 U.S.C. § 1915, and
the Prison Litigation Reform Act. The Defendants are also reminded of the duty to

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avoid unnecessary service expenses and of the possible imposition of expenses for
failure to waive service. The Plaintiff is reminded of his duty to keep the clerk of court
and all opposing attorneys advised of his current address, duty to prosecute this action,
and the provisions regarding discovery in the Magistrate Judge’s order.

SO ORDERED, this 13th day of April, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT

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