RODRIGUEZ v. CHATMAN et al
ORDER adopting in part 12 Report and Recommendations; granting in part 29 Motion for Reconsideration, construed by the Court as a renewed Motion to Amend ; denying 10 Motion for TRO. It is thus ORDERED that service be made on Dr. Burnside. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 7/8/15 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
No. 5:15‐CV‐2 (CAR)
Warden BRUCE CHATMAN, et al.,
ORDER ON THE RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Hjalmar Rodriguez, an inmate incarcerated at the Georgia Diagnostic
and Classification Prison, filed this pro se civil rights complaint pursuant to 42 U.S.C. §
1983, alleging various constitutional violations arising from his confinement in the
Special Management Unit (“SMU”). Currently before the Court is the United States
Magistrate Judge’s Recommendation [Doc. 12] to allow some of Plaintiff’s First,
Eighth, and Fourteenth Amendment claims to proceed against certain Defendants, to
deny Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction
[Doc. 10], and to dismiss all other claims and parties.
Plaintiff filed an objection to the Recommendation [Doc. 31] and a “Declaration
in support of [his] Motion for a Temporary Restraining Order and Preliminary
Injunction” [Doc. 28].1 In addition, Plaintiff filed a Motion for Reconsideration [Doc.
29] of the Magistrate Judge’s order denying leave to amend his complaint. Having
reviewed these filings and the issues raised in the objections de novo, the Court rules as
Plaintiff’s Motion for Reconsideration
The Court will first address Plaintiff’s Motion for Reconsideration of the order
denying leave to amend. On March 23, 2015, Plaintiff sought leave to amend his
complaint, but that request was denied because Plaintiff failed to set forth the
substance of his proposed amendments. In the instant Motion for Reconsideration,
Plaintiff now attaches a proposed amended complaint. Because Plaintiff attaches a
new amended complaint, the Court CONSTRUES Plaintiff’s Motion for
Reconsideration as a renewed Motion to Amend his Complaint, and GRANTS in part
and DENIES in part the Motion.
Rule 15(a)(1) of the Federal Rule of Civil Procedure allows a party to amend his
pleading once as a matter of course within twenty‐one days of service or the filing of a
responsive pleading. As explained by the Magistrate Judge, Plaintiff has already
The Court construes both of these filings as objections.
amended his complaint once. Therefore, Plaintiff may only amend his complaint with
written consent of Defendants or leave of the court.2 When a party seeks leave to
amend a pleading, “the court should freely give leave when justice so requires.”3
Under Rule 15(a)’s liberal amendment policy, “unless a substantial reason exists to
deny leave to amend, the discretion of the district court is not broad enough to permit
denial.”4 A substantial reason exists to deny leave to amend when, for example, the
proposed amendment would be futile.5 A claim is futile if it would be subject to
dismissal for failure to state a claim upon which relief may be granted.6
Plaintiff’s proposed amended complaint, in part, re‐alleges the same facts as
those contained in the original and supplemental complaints, which were fully
considered by the Magistrate Judge before entering the Recommendation. Because
these facts were already considered, the Motion to Amend is DENIED as MOOT with
respect to those claims. Plaintiff, however, does allege new facts to support his denial
of access to courts and Sixth Amendment claims and seeks to add a new defendant,
Fed. R. Civ. P. 15(a)(2).
4 Shipner v. E. Air Lines, Inc., 868 F.2d 401, 407 (11th Cir. 1989).
5 See Rosen v. TRW, Inc., 979 F.2d 191, 194 (11th Cir. 1992) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)); see also Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262‐63 (11th Cir. 2004) (“[A] district court
may properly deny leave to amend the complaint under Rule 15(a) when such amendment would be
6 Patel v. Ga. Depʹt BHDD, 485 F. Appʹx 982, 982‐83 (11th Cir. 2012).
Dr. Edward Burnside, to his Eight Amendment deliberate indifference to serious
medical needs claim. Therefore, these claims warrant further discussion.
A. Denial of Access to Courts and Sixth Amendment Claims
In his supplemental complaint, Plaintiff alleges that law librarian, John Young,
and SMU Superintendent, Rodney McCloud, are impeding his access to courts by
limiting him to two legal requests per week from the law library and denying him
physical access to the law library. Plaintiff contends that this limited access to legal
materials is hindering his defense in a criminal case pending against him in Chattooga
County. The Magistrate Judge recommends dismissal of his access to court and Sixth
Amendment claims because a criminal defendant who chooses to forgo the right to
counsel in a criminal case and proceed pro se does not have the right to additional law
library access to aid him in his defense because he was provided with the option of
counsel. In the proposed amended complaint, however, Plaintiff alleges he was never
provided the option of counsel in his criminal case. Moreover, Plaintiff alleges that,
due to the unconstitutional restrictions on his access to the law library, he missed the
deadline to file a demand for a speedy trial in the criminal proceeding. Accepting
these additional facts as true, the Court agrees with the Recommendation that
Plaintiff’s access to courts claim and Sixth Amendment claims should be dismissed but
for different reasons.
“[T]he fundamental constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of meaningful legal papers
by providing prisoners with adequate law libraries or adequate legal assistance from
persons trained in the law.”7 The Supreme Court in Lewis v. Casey8 held that, in order
to prevail on a denial of access to courts claim, a prisoner must show he has suffered
an “actual injury” resulting from the inadequacies of the law library or legal assistance
program.9 The Lewis court restricted the definition of “actual injury” to impediments
in pursuit of certain types of claims—namely, direct or collateral attacks on a criminal
conviction or challenges to conditions of confinement.10 In the instant case, two
reasons support dismissal of Plaintiff’s access to courts and Sixth Amendment claims.
First, an ongoing criminal proceeding does not fall within any of the categories
of cases enumerated in Lewis under which a prisoner may bring an access to courts
claim. Given the strict limitation on the types of cases which support a denial of access
Bounds v. Smith, 430 U.S. 817, 828 (1977).
518 U.S. 343 (1996).
9 Id. at 351.
10 Id. at 355; see also Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998) (“[P]rison officialsʹ actions
that allegedly violate an inmateʹs right of access to the courts must have impeded the inmateʹs pursuit of
a nonfrivolous, post‐conviction claim or civil rights action.”).
to courts claims, some district courts have questioned whether a plaintiff may satisfy
the “actual injury” requirement in an ongoing criminal case.11
Second, because Plaintiff’s criminal proceeding is ongoing, this Court further
finds it should abstain from considering the merits of Plaintiff’s access to courts and
Sixth Amendment claims under Younger v. Harris. 12 “[Younger] and its progeny
espouse a strong federal policy against federal‐court interference with pending state
judicial proceedings absent extraordinary circumstances.”13 The policy underlying the
abstention doctrine stems from basic principles of federalism, equity, and comity.14
Pursuant to the Younger doctrine, “federal courts ordinarily must refrain from
deciding the merits of a case when (1) there is a pending state judicial proceeding; (2)
the proceeding implicates important state interests; and (3) the parties have an
adequate opportunity to raise any constitutional claims in the state proceeding.”15
All three factors support abstention in this case. The state criminal proceeding
is still pending, and the state has an important interest in adjudicating criminal cases.
See, e.g., Gray v. Cochran, No. CIV.A. 13‐0549‐CB, 2014 WL 4207731, at *3 (S.D. Ala. Aug. 25, 2014)
(“[A]n initial criminal case is not one of the actions identified in Lewis in which an injury for a claim for
denial of access to courts can be established.”); Demeter v. Buskirk, No. CIV.A. 03‐790, 2003 WL 22416045,
at *3 (E.D. Pa. Oct. 20, 2003) (“[I]t is questionable whether the requisite ‘actual injury’ can be established
where the underlying frustrated claim is neither a civil rights action under § 1983 nor a post‐conviction
direct or collateral appeal.”).
12 401 U.S. 37 (1971).
13 Middlesex Cnty. Ethics Comm. v. Garden State Bar Assʹn, 457 U.S. 423, 431 (1982).
14 Younger, 401 U.S. at 43‐44.
15 Newsome v. Broward Cnty. Pub. Defenders, 304 F. Appʹx 814, 816 (11th Cir. 2008) (citing Middlesex Cnty.
Ethics Comm., 457 U.S. at 432).
More important, Plaintiff has the opportunity to raise his constitutional access to
courts and Sixth Amendment claims in his ongoing criminal case.16 Accordingly,
Plaintiff’s access to courts and Sixth Amendment claims are DISMISSED without
B. Eighth Amendment Claim against Defendant Dr. Edward Burnside
Plaintiff also seeks to add an Eighth Amendment claim against a new
defendant, Dr. Edward Burnside, for deliberate indifference to his serious medical
needs. Plaintiff alleges that on September 21, 2014, he became ill and began spitting
up blood. Dr. Burnside was notified of Plaintiff’s sickness but refused to examine him.
Instead, Dr. Burnside prescribed Plaintiff medication. Plaintiff refused to take the
medication because he did not know what it was or what it was intended to treat.
Then, in December 2014, Plaintiff was examined by Dr. Burnside for a bullet lodged in
his leg. Plaintiff requested the bullet be removed because it was causing him pain, but
Dr. Burnside denied that request and prescribed ibuprofen for the pain. Ibuprofen
See Hughes v. Att ‘y Gen. of Florida, 377 F.3d 1258, 1263 n. 7 (11th Cir. 2004) (“The policy of equitable
restraint expressed in Younger . . . is founded on the premise that ordinarily a pending state prosecution
provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.”).
provides Plaintiff with “limited relief, but does not stop the pain.”17 Lastly, Plaintiff
alleges that Dr. Burnside x‐rayed his hand on March 7, 2015, but refused to do more to
relieve the pain associated with his hand injury.
“It is well settled that the deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the
Eighth Amendment.”18 But “not every claim by a prisoner that he has not received
adequate medical treatment states a violation of the Eighth Amendment.”19
Inadvertence or negligence in failing to provide medical care, for example, does not
give rise to a constitutional violation. 20 Instead, “[m]edical treatment violates the
Eighth Amendment only when it is ‘so grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to fundamental fairness.’”21 “[A] simple
difference in medical opinion between the prisonʹs medical staff and the inmate as to
the latterʹs diagnosis or course of treatment [does not] support a claim of cruel and
unusual punishment.”22 On the other hand, “medical care that is so cursory as to
Doc. 29‐3, p. 12.
McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999) (internal quotation marks omitted).
19 Id. (internal quotation marks omitted).
20 Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003).
21 Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quoting Rogers v. Evans, 792 F.2d 1052, 1058
22 Harris, 941 F.2d at 1505.
amount to no treatment at all” can constitute deliberate indifference.23
The facts alleged against Dr. Burnside regarding Plaintiff’s sickness in
September 2014 fail to state a claim of deliberate indifference because Plaintiff merely
disagreed with Dr. Burnside’s course of treatment and refused to take the medication
provided. Therefore, Plaintiff’s request to amend to add these facts is denied. The
remainder of the facts regarding the lack of treatment and continuing pain in his leg
and hand, however, are sufficient to allow an Eighth Amendment claim to go forward
against Dr. Burnside. Therefore, Plaintiff’s Motion to Amend is GRANTED in part to
allow the Eighth Amendment claim against Dr. Burnside based on his leg and hand
treatment to go forward for further factual development.
The Court has considered the remainder of the Recommendation and the
portions to which Plaintiff objects de novo and finds the objections to be without merit.
With respect to Plaintiff’s request for emergency injunctive relief, the Magistrate Judge
fully explained the four prerequisites for obtaining a preliminary injunction.24 “In this
Circuit, a preliminary injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly established the burden of persuasion as to each of
Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011).
See Doc. 12, p. 13.
the four prerequisites.”25 At this juncture, Plaintiff has failed to show a substantial
likelihood of success on the merits sufficient to warrant the extraordinary remedy of
Based on the foregoing, the Recommendation [Doc. 12] is ADOPTED in part.
The conclusions and findings of the Recommendation are hereby INCORPORATED
and MADE THE ORDER OF THE COURT with the exception of the reasoning
offered in support of dismissing the denial of access to courts and Sixth Amendment
claims. In light of new facts alleged after submission of the Recommendation, the
Court dismisses those claims for different reasons as explained above. Accordingly,
Plaintiff may proceed with his First, Eighth, and Fourteenth Amendment claims
against certain Defendants as explained in the Recommendation; all other claims and
parties are DISMISSED; and Plaintiff’s Motion for Temporary Restraining Order and
Preliminary Injunction [Doc. 10] is DENIED.
Plaintiff’s Motion for Reconsideration [Doc. 29] is CONSTRUED as a renewed
Motion to Amend, which the Court GRANTS in part and DENIES in part. The Court
will allow Plaintiff to proceed with an Eighth Amendment claim against Dr. Edward
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (internal brackets and quotation marks omitted).
Burnside. It is thus ORDERED that service be made on Dr. Burnside and that he file
an Answer, or such other response as may be appropriate under the Federal Rules of
Civil Procedure, § 1915, and the Prison Litigation Reform Act. Dr. Burnside is
reminded of the duty to avoid unnecessary service expenses, and the possible
imposition of expenses for failure to waive service.
SO ORDERED, this 8th day of July, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
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