CARSWELL v. ROGERS et al

Filing 62

ORDER GRANTING in part and REJECTING in part 55 Report and Recommendations; GRANTING in part and DENYING in part 16 Motion to Dismiss; DENYING 23 Motion to Dismiss/Motion to Dismiss for Failure to State a Claim; DENYING 38 Motion for Preliminary Injunction; and GRANTING 43 Motion to Dismiss for Failure to State a Claim. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/29/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

JAMES JACKSON CARSWELL,
Plaintiff,
v.
Doctor MICHAEL ROGERS, et al.,
Defendants.

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

ORDER
Before the Court is the Recommendation of United States Magistrate Judge
Stephen Hyles (Doc. 55) regarding motions to dismiss filed by Defendants Rogers and
Ayers (Doc. 16), Defendant McClarin (Doc. 23), and Defendants Fleming, Harrison, and
Barrow (Doc. 43) and Plaintiff Carswell’s motion for preliminary injunction (Doc. 38).
The Magistrate Judge recommends granting in part and denying in part Rogers and
Ayers’ motion; denying McClarin’s motion; granting in part and denying in part Barrow,
Fleming, and Harrison’s motion; and denying Carswell’s motion. (Doc. 55). The
Defendants have objected. (Docs. 58, 59). Pursuant to 28 U.S.C. § 636(b)(1), the
Court has considered the objections and has made a de novo determination of the
portions of the Recommendation to which the Defendants object. The Court has
reviewed the other portions of the Recommendation for clear error.
The Recommendation is ADOPTED in part and REJECTED in part.

I. DISCUSSION
A. Exhaustion
McClarin argues that he only treated Carswell at Ware State Prison, and he
claims that some unspecified provision of an exhaustion SOP requires an inmate to file
a grievance at the prison where the grieved incident occurred. (Doc. 58 at 15, 17).
Because Carswell did not file any grievances at Ware State Prison, McClarin argues he
could not have exhausted those claims. (Doc. 58 at 15, 17). The Court is not aware of
any provision in either the 2003 or 2012 SOP that prevents an inmate from grieving an
incident that occurred at one facility from a different facility; in fact, both versions of the
SOP specifically mention a grievance that is “filed in reference to a different facility.”
(Docs. 58-1 at 11; 58-2 at 13). Moreover, it does not appear that Carswell was ever
housed at Ware–he was merely transported there for treatment by McClarin, so he likely
would not have had the opportunity to file a grievance there. McClarin’s objection is
without merit.
With regard to the objections of Defendants Ayers, Rogers, Fleming, Harrison,
and Barrow, the Court agrees with the Magistrate Judge that Carswell did not have fair
notice of his ability to develop a record and thus should be given the opportunity to
support his allegations that he fully exhausted his claims. (Doc. 55 at 22). Without a
complete record, the Court cannot find that Carswell failed to exhaust as a matter of law
at Step 2 of the analysis set out in Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).

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B. Statute of Limitations
1. McClarin
In his objection, McClarin argues that Carswell’s state law malpractice claims are
barred by the medical malpractice statute of limitations. (Doc. 58 at 4-6). McClarin also
argues that Georgia does not recognize the continuing violation doctrine in medical
malpractice cases. (Doc. 58 at 11). However, Carswell does not raise any state-law
medical malpractice claims, so this statute of limitations is not applicable to Carswell’s
allegations, nor does it matter that Georgia law does not apply the continuing violation
doctrine to medical malpractice cases.
McClarin also argues that even if there were a continuing violation, the statute of
limitations begins to run when a prisoner is transferred from the facility where the
alleged constitutional violation occurred. (Doc. 58 at 12-13). McClarin points to
numerous transfers: Carswell was housed at Calhoun State Prison from August 2010 to
February 2012; he was transferred to Washington State Prison, where he is currently
housed, in February 2012; he was temporarily transferred to Ware State Prison for each
of the cryosurgery treatments; and he was apparently transferred to Augusta State
Medical Prison (“ASMP”) at some point in November 2012 because he filed a grievance
against the prison at that time. (Doc. 58 at 13). McClarin contends that each of these
transfers was “sufficient to restart the running of the statute of limitations, [and thus
Carswell] cannot rely on the ‘continuing tort’ doctrine.” (Doc. 58 at 13).

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McClarin relies on Riley v. Vaughn, 2015 WL 9998422, at *5 (S.D. Ga.) and
Brown v. Roberts, 2015 WL 1258028, at *2 (M.D. Ga.), to support this argument.1 Both
are distinguishable. In Riley and Brown, the continuing violation ended when the
prisoner was transferred to a new facility because the prisoner came under the care of
the medical staff at that new facility and was no longer under the care of the medical
staff responsible for the continuing violation. Riley, 2015 WL 9998422, at *5-6; Brown,
2010 WL 1258028, at *2. Here, even though Carswell was temporarily transferred to
and from Ware State Prison for each of his cryosurgery treatments, he remained under
McClarin’s care for the basal cell carcinoma on his ear regardless of his housing
assignment. Carswell’s housing transfer from Calhoun State Prison to Washington
State Prison also did not affect McClarin’s care of Carswell, nor did his transfers to and
from Ware State Prison or ASMP. There is no indication that another doctor took over
the care of the basal cell carcinoma on Carswell’s ear after any of these transfers, so
the transfers do not affect the statute of limitations. McClarin’s role as the treating
physician transcends these transfers.
2. Ayers
Carswell’s Eighth Amendment claim for delay in diagnosing the bleeding mole on
his ear is a separate claim from his claim for inadequate treatment.2 While Carswell

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McClarin actually cites Robinson v. United States, 327 F. App’x 816, 818 (11th Cir. 2007), instead of
Brown. Presumably, McClarin relies on Robinson because Riley does, but Robinson does not address
transfers at all. The passage Riley quotes and attributes to Robinson is actually from Brown.

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The Magistrate Judge assessed the statute of limitations relating to Carswell’s claims against Ayers and
McClarin together, which included a statement that “Defendants first delayed in diagnosing the cancerous
mole.” (Doc. 55 at 12-14). However, only Ayers delayed in diagnosing the bleeding mole on Carswell’s
ear. Carswell’s claim against McClarin is only for inadequate treatment; the complaint alleges that
McClarin diagnosed the basal cell carcinoma when he first saw Carswell via telemed in April 2011, and it
appears that he ordered cryosurgery treatment at that time. (Doc. 1 at 6).
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alleges that Ayers failed to diagnose his cancer, he alleges that McClarin made the
correct diagnosis in April 2011, more than two years before Carswell filed his complaint.
At that point, Carswell knew that Ayers had failed to diagnose his condition. Thus, there
was no continuing violation after McClarin’s diagnosis. Carswell’s failure-to-diagnose
claim against Ayers is barred by the statute of limitations and is DISMISSED.
With regard to his claim for constitutionally inadequate treatment, Carswell
alleges that both Ayers and McClarin ordered the cryosurgery and that they elected to
treat him with cryosurgery even though they knew it was not the right procedure with the
intent to both cause Carswell harm and save money. (Doc. 1 at 6, 9). While it is likely
that a more fully developed record will reveal that Ayers was merely implementing
McClarin’s orders, the current record does not allow the Court to conclude that Ayers
was not involved in the alleged continuing violation. As it stands, the allegations about
inadequate treatment are identical for Ayers and McClarin. (Doc. 1 at 8-9). This claim
is not barred by the statute of limitations.
The Magistrate Judge did not discuss whether Ayers’s alleged delay in treating
the hernia is barred by the statute of limitations, and Ayers does not mention it in his
objection. Carswell has alleged that he sought hernia surgery from Ayers and that
Ayers “openly and blatantly refused to provide surgery for the hernia” because he was
angry that Carswell had filed grievances against him. (Doc. 1 at 7). In his motion to
dismiss, Ayers notes that it is “unclear from the allegations in the Complaint” whether
the claims about Ayers’s treatment of the hernia are barred by the statute of limitations.
(Doc. 16-1 at 5 n.2). They are clear enough to withstand a motion to dismiss. This
claim may proceed.
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C. Failure to State a Claim
1. Rogers
a. Eighth Amendment
Rogers argues that neither the fact that Carswell had a hernia and requested
surgery for it nor that Carswell later required surgery establishes the requisite
knowledge of a risk of serious harm for a deliberate indifference claim. (Doc. 59 at 22).
He contends the allegations simply question his medical judgment. (Id.). While the
evidence may eventually support this contention, at this stage in the proceedings, the
Court cannot say as a matter of law whether the delay in surgery was based on medical
judgment. There is certainly case law supporting Rogers’s contention that delaying
hernia surgery was a medical judgment, and even a reasonable one, depending on the
state of the hernia and the effectiveness of the treatment Carswell received. See, e.g.,
Jackson v. Jackson, 456 F. App’x 813, 814-15 (11th Cir. 2012) (granting summary
judgment to doctor because delaying hernia surgery the plaintiff prisoner requested was
a medical judgment on evidence that the plaintiff received treatment for his hernia and
common medical practice did not require surgery for a hernia until it becomes
strangulated). However, Jackson was decided on summary judgment with the benefit of
a developed record, including medical records and testimony from the defendant
physician.
With regard to Carswell’s Eighth Amendment claim that Rogers was deliberately
indifferent when he discontinued his hernia medication after Carswell filed this lawsuit,
the Magistrate Judge recommended granting the motion to dismiss as to Herblax and
the bran fiber snack, and denying the motion as to Colace and Lactulose. (Doc. 55 at
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34). Rogers argues that he discontinued the medications after Carswell’s hernia
surgery because they were no longer necessary to treat Carswell’s condition, and
Carswell has not alleged any adverse consequences associated with this medical
decision. (Doc. 59 at 22-23).
The Magistrate Judge found that the discontinuation of Herblax and the bran fiber
snack was a medical judgment, while the discontinuation of Colace and Lactulose was
not. (Doc. 55 at 34). While the Magistrate Judge said that all four were used to treat
Carswell’s irritable bowel syndrome, which, if inflamed, would worsen the hernia, he
distinguished the prescription medications, Colace and Lactulose, because both had
refills remaining. (Doc. 55 at 34). Because all four items were used to treat the same
condition, and Carswell alleges that all were discontinued not for medical reasons but
because he filed this lawsuit, the Court does not see a meaningful distinction among
them. Again, while further development of the record may well show that Rogers’s
decision was based on his medical judgment, at this stage in the proceedings, it is
impossible to tell. For now, Carswell’s claims for the discontinuation of all four
medications may proceed.
With regard to Carswell’s claim that Rogers failed to diagnose the bleeding mole
on his nose, Rogers argues that Carswell has not sufficiently alleged he knowingly
disregarded a risk of serious harm because he has not stated what the biopsy revealed
and thus he has not alleged that the mole was cancerous. (Doc. 59 at 21). Rogers
seems to be conflating the element of an objectively serious medical condition with the
knowledge element of a deliberate indifference claim. Carswell contends he advised
Rogers of his history of bleeding moles that were diagnosed as basal cell carcinomas.
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(Doc. 1 at 8-9). The Magistrate Judge inferred from these allegations that the bleeding
mole on Carswell’s nose could also be a basal cell carcinoma, and if so, that it required
treatment. (Doc. 55 at 31). Carswell sufficiently alleges an objectively serious medical
condition and Rogers’s knowledge of that condition.
b. First Amendment
Rogers argues that Carswell has not provided any factual allegations to establish
a connection between Carswell’s filing of complaints or grievances and Rogers’s
treatment of Carswell. (Doc. 59 at 26). However, in the amended complaint, Carswell
specifically alleges that Rogers discontinued his medication after the complaint was
filed. (Doc. 13, ¶¶ 15, 17-21). Carswell is clearly alleging that the motivation for
discontinuing the medication was the filing of his complaint. This is sufficient to meet
the causation requirement for stating a retaliation claim. See Moton v. Cowart, 631 F.3d
1337, 1341 (11th Cir. 2011) (“To establish causation, the plaintiff must show that the
defendant was subjectively motivated to discipline the plaintiff for exercising his First
Amendment rights.” (internal quotation marks and citation omitted)).
2. Fleming
With regard to Carswell’s claim that Fleming was deliberately indifferent because
she failed to intervene in his medical treatment after he told her he was being denied
treatment for his hernia and the bleeding mole on his nose, Fleming objects to the
inferences the Magistrate Judge drew about her conversation with Carswell. (Doc. 59
at 23-24). “A claim has facial plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, pro se pleadings
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are liberally construed. Anderson v. Ward, 373 F. App’x 968, 969 (11th Cir. 2010). The
Magistrate Judge made permissible inferences from Carswell’s allegations about his
discussion with Fleming about his medical conditions and the treatment he was
receiving to determine that, even as a lay person, she would know that some treatment
was required for the potentially cancerous bleeding mole on Carswell’s nose. Goebert
v. Lee Cty, 510 F.3d 1312 (11th Cir. 2007). This is sufficient to state a claim.
D. Qualified Immunity
1. McClarin
The Magistrate Judge recommended that the Court reject McClarin’s qualified
immunity defense. (Doc. 55 at 44-45). However, McClarin did not raise a qualified
immunity defense, either in his answer or his motion to dismiss, presumably because he
is an independent contractor rather than a state employee. Accordingly, the Court
REJECTS the recommendation that the Court deny McClarin’s motion to dismiss on the
grounds of qualified immunity.
2. Ayers, Rogers, and Fleming
In a footnote at the end of the last section of their objection, Ayers, Rogers, and
Fleming object that they are entitled to qualified immunity because Carswell has not
stated constitutional claims for relief. (Doc. 59 at 26 n.12). They do not argue that
clearly established law would not have placed a reasonable official on notice that his
conduct was unlawful in the situation he confronted. As discussed, Carswell has
sufficiently alleged several constitutional claims, so this argument fails.

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II. CONCLUSION
Therefore, the Recommendation is ADOPTED in part and REJECTED in part.
Ayers’s motion to dismiss is GRANTED for the Eighth Amendment claim for the delay in
diagnosing the cancer on Carswell’s ear. (Doc. 16). His motion is DENIED for the
Eighth Amendment claims for inadequate treatment of the cancer on Carswell’s ear, the
denial of medication, and the denial of hernia surgery; and for the First Amendment
retaliation claims for discontinuing medications, denying hernia surgery, and refusing to
approve reconstruction surgery for Carswell’s ear. (Id.). Rogers’s motion to dismiss is
GRANTED for the delay in cataract surgery and DENIED for the Eighth Amendment
claims for delaying hernia surgery, discontinuing hernia medication, delaying the
diagnosis and treatment of the bleeding mole on Carswell’s nose; and for the First
Amendment retaliation claims for discontinuing medication and delaying hernia surgery.
(Id.). McClarin’s motion to dismiss is DENIED. (Doc. 23). Barrow’s motion to dismiss
is GRANTED. (Doc. 43). Harrison’s motion to dismiss is GRANTED. (Id.). Fleming’s
motion to dismiss is GRANTED as to the claim for deliberate indifference regarding
Carswell’s hernia. (Id.). It is DENIED for the deliberate indifference claim regarding the
bleeding mole on Carswell’s nose. (Id.). Carswell’s motion for preliminary injunction is
DENIED. (Doc. 38).
SO ORDERED, this 29th day of March, 2016.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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