BROWN v. HOLLAS et al

Filing 6

ORDER dismissing case without prejudice and ordering collection of fees. Ordered by Judge Hugh Lawson on 5/22/2012. (nbp)

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

CEDRIC BROWN,
Plaintiff,
VS.
VALIRE HOLLAS , et. al.

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NO. 7:12-CV-062-HL-TQL

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Defendants.
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ORDER OF DISMISSAL
Plaintiff Cedric Brown, a prisoner at the Tift County Jail in Tifton, Georgia, has filed a pro
se civil rights complaint under 42 U.S.C. § 1983 and is proceeding in forma pauperis (“IFP”).
Because Plaintiff seeks to proceed IFP, this Court is required to screen his Complaint pursuant to
28 U.S.C. § 1915A. Having now done so, the Court finds that the Complaint fails to state a claim
upon which relief may be granted. Plaintiff’s Complaint is accordingly DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915A(b)(1).
STANDARD OF REVIEW
When reviewing a complaint under 28 U.S.C. § 1915A, 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). However, a district court may still dismiss a prisoner 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).

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 (2007). The factual allegations in
a complaint “must be enough to raise a right to relief above the speculative level” and cannot
“merely create[] a suspicion [of] a legally cognizable right of action.” Id. In other words, the
complaint must allege “enough facts to raise a reasonable expectation that discovery will reveal
evidence” supporting a claim. Id. “[T]hreadbare recitals of the elements of a 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).
To state a claim for relief under § 1983, a plaintiff must allege that: (1) an act or omission
deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United
States; and (2) the act or omission was committed by a person acting under color of state law. Hale
v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir. 1995). If a litigant cannot satisfy these
requirements, or fails to provide factual allegations in support of his claim or claims, the complaint
is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003); see also 28
U.S.C. § 1915A(b).
STATEMENT AND ANALYSIS OF CLAIMS
In this case, the Complaint alleges that Plaintiff was denied needed medical care while
imprisoned in the Tift County Jail. Plaintiff claims to suffer from various ailments, including
headaches, stomach problems, and back and knee pain. (Compl. [Doc. 1] at 5). According to the
Complaint, Plaintiff “put in a sick call form” on October 25, 2011, and was seen the following day
by Defendant Valire Hollas, who then treated Plaintiff by giving him “two tablets to take.” (Id.).
However, Defendant Hollas refused to treat Plaintiff for more than one ailment at that time. She

explained that prisoners “could only be seen for one problem” per visit and that he would need to
“put in another sick call” if he wanted additional treatment. (Id.). Plaintiff apparently took her
advice. He was seen by Dr. James Graham the next day and treated for his stomach problems. Dr.
Graham, however, also refused to treat Plaintiff for multiple ailments during a single visit. (Id.).
Plaintiff put in a third sick call the next day, October 28, 2011. (Id.). He then spoke with
Defendant Geneva Dueberry on October 29, 2011, during his blood sugar check, and she indicated
that Plaintiff would not be seen again for his complaints because he was already on medication.
(Id.). Plaintiff then apparently filed grievances against Defendants Hollas, Graham and Dueberry.
When Plaintiff later spoke with Defendant Lt. Giddens about his grievance, Giddens “stated that he
had talked to them and that was the way it was done.” (Id.).
Plaintiff put in a fourth “sick call” on November 26, 2011, and was seen by medical
personnel on December 2, 2011. (Id.). Plaintiff requested medical treatment again in March of 2012
and was seen by Defendant Dueberry. (Id.). At that time, she indicated that Plaintiff would need
to speak with the doctor. (Id.). Plaintiff, however, has not seen a doctor and has multiple sick calls
currently pending. (Id.). Plaintiff spoke with Defendant Lieutenant Montgomery about the issue in
April of 2012, and he said that “he would check into it,” but he has not since replied. (Id. at 4)
After reading these allegations, it is apparent that Plaintiff is attempting to bring an Eighth
Amendment claim against each Defendant for a denial of medical care. Plaintiff’s allegations,
however, fail to state a cognizable claim against any Defendant.
To state a claim for denial of medical care, a plaintiff must allege acts or omissions
amounting to deliberate indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 106
(1976). A plaintiff must allege facts in his complaint demonstrating (1) that he has an objectively
serious medical need which poses a substantial risk of serious harm if left unattended, and (2) that

the defendant had subjective knowledge of a risk of serious harm to the plaintiff but disregarded that
risk. Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir. 2000); Bozeman v. Orum, 422 F.3d 1265,
1272 (11th Cir. 2005).
Plaintiff's Complaint does not include these necessary allegations. Nothing in Plaintiff's
Complaint suggests that he in fact suffers from an “objectively serious medical need” or that any
defendant disregarded a risk of serious harm to Plaintiff. Plaintiff only complains of relatively
minor ailments - head aches, stomach problems, and back and knee pain. Certainly, “[n]ot every
ache and pain or medically recognized condition involving some discomfort can support [a
constitutional] claim.” Gutierrez v. Peters, 111 F.3d 1364, 1372 (7th Cir.1997). Moreover,
Plaintiff’s allegations show that he has received medical treatment for his complaints, even though
it may have required that he put in multiple sick calls. While this may have be inconvenient and/or
frustrating for Plaintiff, no fact alleged in the Complaint suggests that the medical treatment
provided was grossly incompetent, inadequate, or so lacking as to shock the conscience or to be
intolerable to fundamental fairness. The facts in Plaintiff’s Complaint thus fail to describe any
constitutional violation. See Harris v. Thigpen, 941 F.2d 1495,1505 (11th Cir. 1991).
Plaintiff additionally fails to state any claim based upon prison officials’ lack of response
to the grievances he filed. The mere fact that a prison official denies a grievance or otherwise fails
to act on information contained in a grievance is insufficient to impose liability under § 1983. See
Larson v. Meek, 240 Fed. Appx. 777, 780 (10th Cir. 2007) (“denial of the grievances alone is
insufficient to establish personal participation in the alleged constitutional violations”); Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (refusing to impose liability on official who merely failed
to act based on information contained in the grievance).
For these reasons, the Court finds that Plaintiff has not stated any claim upon which relief

may be granted. Plaintiff’s Complaint is accordingly DISMISSED without prejudice pursuant to
28 U.S.C. § 1915A(b)(1).
The dismissal of this Complaint, however, does not relieve Plaintiff of his obligation to pay
his filing fee. Plaintiff is still obligated to pay $ 309.80 towards his filing fee, using the installment
payment plan described in 28 U.S.C. § 1915(b). Hereafter, Plaintiff shall make monthly payments
of 20% of the deposits made to his prisoner account during the preceding month toward the full
filing fee. The agency having custody of Plaintiff is ORDERED to forward said payments from
Plaintiff's account to the Clerk of the Court each time the amount in the account exceeds $10.00
until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). For this reason, the Clerk shall send
a copy of this Order to the business manager of Tift County Jail.
Filing fees paid are not refundable, regardless of the outcome of Plaintiff's case. It is thus
ORDERED that collection of monthly payments from Plaintiff's trust fund account 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. In the event Plaintiff
is 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 until it has been paid in full.

If Plaintiff is

released from custody and fails to remit payments, collection of any balance due shall be authorized
by any means permitted by law.
SO ORDERED, this 22nd day of May 2012.
s/ Hugh Lawson
HUGH LAWSON, JUDGE
UNITED STATES DISTRICT COURT
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