Johnson v. Conway et al
Filing
39
ORDER granting Plaintiff's 34 Motion for Leave to Amend. Medical Defendants' 28 Motion to Dismiss is DENIED in part and GRANTED in part. Defendants motion is granted as to the following claims: First Amendment retaliation claim agai nst Defendant Campbell; First Amendment retaliation claim against Defendant Fajardo insofar as it is based on conspiracy to use force in retaliation for protected speech; Fourteenth Amendment excessive force claim against Defendant Fajardo; State- Law battery claim against Defendant Fajardo insofar as it is based on an alleged conspiracy to commit battery; and Negligence claim against Defendant Campbell. The remaining claims are: First Amendment retaliation claim against Defendant Fajardo i nsofar as it is based on administration of the PPD test; State-law battery claim against Defendant Fajardo insofar as it is based on administration of the PPD test; Negligence claim against Defendant Fajardo insofar as it is based on administration of the PPD test; and Respondeat Superior claim against Corizon to the extent state-law tort claims remain against Defendant Fajardo. Signed by Judge Richard W. Story on 9/30/2013. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
VANCE R. JOHNSON,
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Plaintiff,
v.
SHERIFF R.L. “BUTCH”
CONWAY, CHRISTOPHER
REVELS (SO #692), ROBERT
BAILEY (SO # 893), TOCHI
DAVIS (SO # 1145), CORIZON
HEALTH, INC., MAVIS
CAMPBELL and SUSAN
FAJARDO,
Defendants.
CIVIL ACTION NO.
1:13-CV-0524-RWS
ORDER
This case is before the Court on Plaintiff’s Motion for Leave to Amend
[34] and Motion to Dismiss on Behalf of the Medical Defendants [28]. After
reviewing the record, the Court enters the following Order.
I.
Plaintiff’s Motion to Amend
Plaintiff seeks leave of court to amend his First Amended Complaint.
Plaintiff’s proposed amendments correct misnomers and make small factual
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clarifications. Plaintiff’s motion is unopposed.1
Under Federal Rule of Civil Procedure (“Rule”) 15(a)(2), leave to amend
should be freely given when justice so requires. As Plaintiff notes, the Court’s
Scheduling Order allows amendments to pleadings up to thirty days after filing
of the Joint Preliminary Report and Discovery Plan. (Scheduling Order, [33] at
7.) Here, the Joint Preliminary Report was filed on May 15, 2013 and
Plaintiff’s Motion to Amend was filed nine days later on May 24, 2013. The
Scheduling Order also stayed discovery until the Court rules on the Medical
Defendants’ Motion to Dismiss.
Detecting no risk of unfair prejudice to Defendants, and seeing no
opposition from them, the Court GRANTS Plaintiff’s Motion to Amend [34]
and accepts Plaintiff’s Proposed Second Amended Complaint [34-1].
1
Defendants Corizon Health, Inc, Mavis Campbell, and Susan Fajardo
(collectively, “Medical Defendants”) state in their reply brief in support of their
motion to dismiss that “they do not oppose Plaintiff’s motion to amend his first
amended complaint.” (Def.s’ Reply, [37] at 1.) The other Defendants did not file a
response to Plaintiff’s motion and therefore, under Local Rule 7.1B, the motion is
deemed unopposed. N.D. Ga. L.R. 7.1(B).
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II.
Medical Defendants’ Motion to Dismiss
A.
Background2
On February 18, 2011, Plaintiff was arrested and taken to Gwinett
County Detention Center. When he arrived at the jail Plaintiff was sent to the
intake medical unit operated by Corizon and its employees. Plaintiff spoke with
Defendant Campbell, the intake supervisor, to complete the medical intake
receiving and screening process. During the screening process, Plaintiff was
asked if he had any medical problems or required any medical treatment.
Plaintiff told Campbell that he did not require any treatment. He informed
Campbell that he had RSD in his left foot from a prior injury. Plaintiff signed
the intake receiving and screening form, which noted his pre-existing foot
injury and stated that his vital signs had been taken.
When Plaintiff signed the intake form, he refused to sign any other forms
put in front of him by Campbell “because she was acting hostilely toward
Plaintiff and was insisting that he sign medical forms without letting him take
time to read them.” When Plaintiff refused to sign any more forms, Campbell
2
As this case is before the Court on a motion to dismiss, the Court accepts as
true all well-pleaded facts in the Second Amended Complaint [34-1]. Cooper v. Pate,
378 U.S. 546, 546 (1964).
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had Plaintiff placed in a holding cell in the booking area. Approximately four
hours later, an unknown detention officer came to the holding cell and asked
Plaintiff if he would sign the General Consent to Medical Services Form, which
authorized the jail health care provider to give Plaintiff general clinical and
emergency care. Plaintiff said “no” because he anticipated a prompt release
from jail and did not want jail medical staff treating him for any reason. The
officer then asked Plaintiff if he would sign the Refusal of Clinical Services
Form, and Plaintiff agreed. The officer returned Plaintiff to Campbell at the
medical intake desk and both Plaintiff and Campbell signed the refusal form.
Campbell informed the nurses and detention officers in the booking unit that
Plaintiff had refused any and all medical treatment at the jail.
After Plaintiff signed the refusal form, detention officers and nurses made
multiple attempts to give Plaintiff a PPD test to screen for tuberculosis. Each
time, Plaintiff refused to consent to the test and told the nurse that he had signed
the form refusing treatment. Finally, on the evening of February 20, 2011, a
detention officer ordered Plaintiff to sit in a chair while Defendant Fajardo
administered a PPD test against Plaintiff’s will. Plaintiff was then sent to a
holding cell. After about ten minutes, Defendant Christopher Revels came to
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Plaintiff’s cell and told him that Defendant Fajardo wanted to see him. Fajardo
told Plaintiff that she needed him to sign the General Consent to Medical
Services Form. Plaintiff read the form, but refused to sign it until he could
show it to his lawyer. The form had a handwritten notation: “Ok to take PPD
test only; [patient] accepted PPD for dress in and then refused to sign consent.”
(General Consent to Medical Services, [1-1].)
Fajardo told Plaintiff that she could not leave until he signed the consent
form, but Plaintiff refused. At that point, Fajardo went over and spoke with
Defendant Revels. Plaintiff could not hear what was said. Revels then walked
over to Plaintiff and in Fajardo’s presence, threatened to use physical force
against Plaintiff if he did not sign. Specifically, Revels stated “I will jump on
your ass if you don’t sign the form” while standing over Plaintiff with his fist
clenched in a threatening manner.
Plaintiff told Revels that he would not sign the consent form because he
was not authorizing treatment and he had already signed the form refusing
treatment. Officer Revels sent Plaintiff back to his holding cell. About two
minutes later, Revels visited Plaintiff’s cell and asked if Plaintiff was ready to
sign the consent form. Plaintiff responded “no” and Revels again threatened to
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use physical force against Plaintiff. Plaintiff responded, “do what you got to do
to me, because I’m not signing any consent form.” Then Officer Revels said he
was calling the “attack squad” or “tack squad.” A few minutes later, two
members of the jail’s Rapid Response Team, Defendants Bailey and Davis,
came to Plaintiff’s cell and told him to get on the floor face down, put his hands
behind his back, and not move. Plaintiff complied with their orders.
Defendants Bailey and Davis handcuffed Plaintiff’s hands so tightly that
his hands felt numb. They snatched Plaintiff up to a standing position by
pulling on his arms, and then they started dragging him backward by his arms.
They bent Plaintiff’s wrists upward and applied pressure as if they were trying
to dislocate Plaintiff’s shoulders. Plaintiff was in excruciating pain while the
officers dragged him for about 100 feet. Plaintiff did not offer any resistance.
This use of force by Defendants Bailey and Davis took place in the presence of
Defendant Fajardo. The Second Amended Complaint contains no other factual
allegations regarding the Medical Defendants.
B.
Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
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relief.” While this pleading standard does not require “detailed factual
allegations,” mere labels and conclusions or “a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
order to withstand a motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its
face when the plaintiff pleads factual content necessary for the court to draw the
reasonable inference that the defendant is liable for the conduct alleged. Id.
“At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Furthermore, the court does not “accept as
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true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555.
“The district court generally must convert a motion to dismiss into a
motion for summary judgment if it considers materials outside the complaint.”
D.L. Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005); see also Fed. R.
Civ. P. 12(d). However, documents attached to a complaint are considered part
of the complaint. Fed. R. Civ. P. 10(c). Documents “need not be physically
attached to a pleading to be incorporated by reference into it; if the document’s
contents are alleged in a complaint and no party questions those contents, [the
court] may consider such a document,” provided it is central to the plaintiff’s
claim. D.L. Day, 400 F.3d at 1276. At the motion to dismiss phase, the Court
may also consider “a document attached to a motion to dismiss . . . if the
attached document is (1) central to the plaintiff’s claim and (2) undisputed.” Id.
(citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). “‘Undisputed’
means that the authenticity of the document is not challenged.” Id.
C.
Analysis
1.
First Amendment Retaliation Claim Against Defendants
Campbell and Fajardo (Count I)
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A First Amendment retaliation claim has three elements: “(1) [Plaintiff’s]
speech was constitutionally protected; (2) [Plaintiff] suffered adverse action
such that the [official’s] allegedly retaliatory conduct would likely deter a
person of ordinary firmness from engaging in such speech; and (3) there is a
causal relationship between the retaliatory action and the protected speech.”
Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). Plaintiff claims he had
a First Amendment right to express his refusal to consent to medical treatment,
but Defendants Campbell and Fajardo “coerced him into submitting to medical
treatment against his will” and “retaliate[d] against him for refusing treatment.”
(Second Am. Compl., [34-1] ¶ 57.)
Here, the alleged retaliatory conduct by Defendant Campbell was placing
Plaintiff in a holding cell. (Id. ¶ 19.) However, as Defendants note, at the time
Plaintiff was put in the cell, Plaintiff had not refused medical treatment. He had
refused to sign any forms regarding treatment (i.e., consent to treat or refusal of
treatment). (Id. ¶ 18; Med. Def.s’ MTD, [28-1] at 9.) As soon as Plaintiff
signed the Refusal of Clinical Services Form, he was removed from the cell and
taken back to Defendant Campbell to sign the document. (Id. ¶¶ 23-24.)
Defendant Campbell took no further action against Plaintiff. Therefore, the
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Court finds no causal connection between the protected speech – refusing
treatment – and the alleged retaliatory action. Accordingly, Plaintiff’s First
Amendment retaliation claim is DISMISSED against Defendant Campbell.
Plaintiff appears to allege that Defendant Fajardo retaliated against him
for refusing medical treatment in two ways: (1) by administering the PPD test
against his will, and (2) by acting in concert with the County Defendants to use
excessive force against Plaintiff. (Id. ¶¶ 28-43A.) Regarding administration of
the PPD test, the Court finds that Plaintiff has alleged sufficient facts to state a
retaliation claim against Fajardo. The Court agrees with Defendants that the
State has a very real interest in screening inmates for tuberculosis, and
administration of the test against Plaintiff’s will was not in itself a constitutional
violation. See Dunn v. Zenk, No. 1:07-CV-2007-RLV, 2007 WL 2904170, at
*3 (N.D. Ga. Oct. 1, 2007) (“[S]tates have a legitimate penological interest in
controlling the spread of tuberculosis such that involuntary administration of a
test for the disease does not offend the Constitution . . . .”). However, for his
First Amendment retaliation claim, Plaintiff does not have to show that the
alleged retaliatory conduct rose to the level of a constitutional violation, only
that he “suffered adverse action such that the [defendant’s] allegedly retaliatory
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conduct would likely deter a person of ordinary firmness from engaging in such
speech.” Smith, 532 F.3d at 1276. Therefore, Defendants’ focus on the
constitutionality of administering the test is misplaced.
The primary issue here is whether the test was given against Plaintiff’s
will in retaliation for Plaintiff refusing medical treatment. In other words, the
inquiry is whether Plaintiff’s protected speech subjectively motivated
Defendants to punish him. Id. at 1278. According to the time line set forth in
the Complaint, it was after Plaintiff refused treatment that officers and nurses
began attempting to force him to take the PPD test. (Second Am. Compl., [341] ¶¶ 24-26.) Plaintiff repeatedly refused to consent to the test, but Defendant
Fajardo administered it anyway. (Id. ¶¶ 26-28.) At this stage of the litigation,
the Court finds that Plaintiff has stated a plausible claim for First Amendment
retaliation against Fajardo based on this conduct.3
3
In the Eleventh Circuit, the subjective motivation issue is evaluated under a
burden-shifting formula. Smith, 532 F.3d at 1278 (citing Thaddeus-X v. Blatter, 175
F.3d 378, 399 n. 14 (6th Cir. 1999); Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977)). “Once the plaintiff has met his burden of establishing
that his protected conduct was a motivating factor behind any harm, the burden of
production shifts to the defendant. If the defendant can show that he would have
taken the same action in the absence of the protected activity, he is entitled to prevail
on summary judgment.” Thaddeus-X, 175 F.3d at 399 (citation omitted). In this case,
for example, discovery may reveal that it is the general policy of Gwinnett County Jail
to administer PPD tests to all inmates. However, this burden-shifting analysis is not
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Regarding Plaintiff’s contention that Fajardo conspired with officers to
use force against Plaintiff in retaliation for his protected speech, the Court finds
Plaintiff has not pled sufficient facts to support such a claim. Plaintiff does not
allege that Fajardo herself used any force against him other than administering
the PPD test. Instead, he alleges that she “caused Defendants Revels, Bailey
and Davis to threaten and use physical force against Plaintiff to coerce him into
signing the consent form and/or punish him for refusing to sign it.” (Second
Am. Compl., [34-1] ¶ 70.) Therefore, the Court interprets the claim against
Fajardo as conspiracy to use retaliatory force against Plaintiff in violation of
Plaintiff’s First Amendment rights.
“In order to prove a Section 1983 conspiracy, a plaintiff ‘must show that
the parties reached an understanding to deny the plaintiff his or her rights [and]
prove an actionable wrong to support the conspiracy.’” Valentine v. Bush, No.
2:10-CV-0097-RWS, 2012 WL 27416, at *5 (N.D. Ga. Jan. 4, 2012) (quoting
Bailey v. Bd. of Cnty. Comm’rs., 956 F.2d 1112, 1122 (11th Cir. 1992)
(internal quotations omitted). The Eleventh Circuit has explained, “the linchpin
for conspiracy is agreement, which presupposes communication.” Bailey, 956
appropriate at the motion to dismiss phase.
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F.2d at 1122. “[A]n agreement may be inferred from the relationship of the
parties, their overt acts and concert of action, and the totality of their conduct.”
Am. Fed’n of Labor & Cong. of Indus. Org.s v. City of Miami, 637 F.3d 1178,
1192 (11th Cir. 2011). Accordingly, in Valentine, this Court found the plaintiff
had alleged sufficient facts to state a claim for § 1983 conspiracy where: (1)
plaintiff alleged all defendants actively participated in the events leading up to
the alleged constitutional violation, (2) plaintiff alleged all defendants “acted in
concert” when the constitutional violation was committed, and (3) “[t]he
Amended Complaint [was] replete with allegations that the Defendants
communicated with one another and actively participated with one another”
leading up to and during the event in question. 2012 WL 27416, at *6.
Here, Plaintiff alleges, Defendant Revels came to Plaintiff’s cell and told
him that Fajardo wanted to see him. After Plaintiff refused to sign the General
Consent to Medical Services Form, Plaintiff saw Fajardo walk over and speak
to Revels but he did not hear what was said. Revels then threatened to use
physical force against Plaintiff if he didn’t sign the form. Plaintiff again
refused to sign and he was returned to his cell. The use of force by Defendants
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Bailey and Davis that followed was witnessed by Fajardo, but there are no other
allegations regarding her participation in these events.
The Court finds these allegations insufficient to show that Fajardo
conspired with the County Defendants to use force against Plaintiff in
retaliation for his refusal of medical treatment. At most, Plaintiff alleges that
Farjardo and Revels had two communications – one that sent Revels to get
Plaintiff from his cell to speak with Fajardo (the Court notes there is no direct
allegation regarding such a communication, but construes the Complaint in a
light most favorable to Plaintiff), and the one following Plaintiff’s refusal to
sign the general consent form. Plaintiff admits he has no knowledge of the
content of the second conversation. The Complaint does not contain any
allegations regarding communications between Fajardo and the other officers
(who were called to Plaintiff’s cell by Revels and who ultimately used force
against Plaintiff), or any allegation that Fajardo and Revels communicated after
Plaintiff returned to his cell. Although Plaintiff alleges that Fajardo witnessed
the officers’ use of force, he does not allege that she assisted or participated in
the use of force in any way.
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These allegations do not support a finding that there was an agreement
between Fajardo and the officers to violate Plaintiff’s constitutional rights.
Therefore, insofar as Plaintiff’s First Amendment retaliation claim is based on
an alleged conspiracy between Fajardo and the officers to use force in
retaliation for Plaintiff’s refusal of medical treatment, the claim is
DISMISSED.
2.
Fourteenth Amendment Excessive Force Claim Against
Defendant Fajardo (Count II)
Under Count II, Plaintiff alleges: “Defendants Fajardo, Revels, Bailey
and Davis acted under color of state law to subject Plaintiff to the excessive use
of physical force – applied maliciously and sadistically to cause harm, to force
him to sign a document that he had the right to refuse to sign, and to improperly
punish or retaliate against him for his continued refusal to sign the document,
thereby violating his right to be free from excessive force as a pretrial detainee
under the Fourteenth Amendment.” (Second Am. Compl., [34-1] ¶ 62.) For the
reasons enumerated above in Part II.C.1, supra, the Court finds that Plaintiff
has not stated a claim for excessive use of force against Defendant Fajardo. He
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has not pled sufficient facts to establish a § 1983 conspiracy.4 Accordingly, this
claim is DISMISSED against Defendant Fajardo.
3.
State-law Battery Claim Against Defendant Fajardo (Count
IV)
First, Plaintiff alleges, “Defendant Fajardo committed a battery against
Plaintiff under Georgia law when she forced him to submit to a PPD test
without his consent and against is will.” (Second Am. Compl., [34-1] ¶ 70.)
“Under proper factual conditions and circumstances, actions against medical
practitioners based on assault and battery for acts arising out of their
professional conduct are recognized in Georgia.” Irwin v. Arrendale, 159
S.E.2d 719, 724 (Ga. Ct. App. 1967). “Health officers are personally liable if,
in enforcing health measures, they do their work negligently, thereby causing
unnecessary damage, or if they act unreasonably, arbitrarily, maliciously, or in
excess of their authority.” Id. However, prisoners may not recover for battery
against healthcare professionals who perform medical testing on prisoners
4
To the extent Plaintiff’s claim rests on Fajardo’s administration of the PPD
test, that action was not an unconstitutional use of force. Dunn, 2007 WL 2904170, at
*3 (N.D. Ga. Oct. 1, 2007) (“[S]tates have a legitimate penological interest in
controlling the spread of tuberculosis such that involuntary administration of a test for
the disease does not offend the Constitution . . . .”).
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where: (1) the professional’s conduct was “not arbitrary or capricious or
without substantial reason;” (2) the medical testing was performed “in order to
determine whether [a prisoner] was afflicted with a communicable, contagious,
or infectious disease which could spread to other prisoners;” (3) the testing,
“under medical standards, is a proper method of examination for the disease;”
and (4) “either the prescribing of the [testing] was based upon reasonable
grounds for suspecting plaintiff was afflicted with the disease or that the
examination complained of was such as could be prescribed for plaintiff, in
conformity with sound medical and public health practices, as routine
prophylaxis without particular grounds for suspicion.” Id. at 726.
Here, the Parties do not appear to dispute that PPD is an appropriate
method for screening for tuberculosis, or that tuberculosis is a contagious
disease that may require prophylactic treatment in prisons. Rather, Plaintiff
alleges the PPD test was administered against his will in retaliation for his
refusal of medical treatment, which could support a finding that Fajardo acted
maliciously. Therefore, at this stage, the Court DENIES Defendants’ motion to
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dismiss Plaintiff’s battery claim against Defendant Fajardo to the extent the
claim is based on improper administration of a PPD test.5
Second, Plaintiff alleges, Fajardo committed a battery “when she caused
Defendants Revels, Bailey and Davis to threaten and use physical force against
Plaintiff to coerce him into signing the consent form and/or punish him for
refusing to sign it.” (Second Am. Compl., [34-1] ¶ 70.) Again, Plaintiff
appears to pursue a conspiracy theory of liability against Fajardo. “A
conspiracy upon which a civil action for damages may be founded is a
combination between two or more persons either to do some act which is a tort,
or else to do some lawful act by methods which constitute a tort.” Savannah
Coll. of Art & Design, Inc. v. Sch. of Visual Arts of Savannah, Inc., 464 S.E.2d
895, 896 (Ga. Ct. App. 1995) (citation omitted). “The essential element . . . is
the common design.” Id. (citation omitted). For the reasons stated in Part
II.C.1, supra, the Court finds Plaintiff has not alleged sufficient facts to show a
conspiracy or common design between Fajardo and the County Defendants to
5
If, however, further proceedings reveal that the test was not given in
retaliation for Plaintiff’s protected speech, but was administered in accordance with
health policies at the jail or for some other legitimate reason, Plaintiff’s battery claim
against Defendant Fajardo will not stand.
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commit a battery against Plaintiff. Therefore, to the extent it is based on an
alleged conspiracy to use force against Plaintiff, Plaintiff’s battery claim is
DISMISSED against Defendant Fajardo.
4.
Negligence Claim Against Defendants Campbell and
Fajardo (Count V)
In support of his negligence claim, Plaintiff alleges that Defendants
Campbell and Fajardo “unreasonably interfer[ed] with Plaintiff’s right to
withhold consent for medical treatment” and “unreasonably attempt[ed] to force
him to provide such consent” and “unreasonably caus[ed] him to suffer injuries
as a proximate result of such conduct.” (Second Am. Compl., [34-1] ¶ 74.) In
Georgia, the essential elements of a negligence claim are: (1) a legal duty; (2) a
breach of that duty; (3) an injury; and (4) a causal connection between the
breach and the injury. Morton v. Horace Mann Ins. Co., 693 S.E.2d 352, 355
(Ga. Ct. App. 2006). Plaintiff appears to suggest that Medical Defendants had a
duty to not interfere with his right to refuse medical treatment. (Pl.’s Resp. Br.,
[35] at 20.)
It is clear that Defendant Campbell did not attempt to interfere with
Plaintiff’s right to refuse treatment. As discussed in Part II.C.1, supra, as soon
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as Plaintiff signed the refusal form, Campbell also signed it and informed jail
personnel that Plaintiff was refusing treatment. Therefore, Plaintiff’s
negligence claim against Campbell is DISMISSED. However, the allegations
in the Complaint could support a claim that Defendant Fajardo unreasonably
interfered with Plaintiff’s right to refuse treatment. Based on the Court’s
findings in Parts II.C.1 and II.C.3, supra, the Court DENIES Defendants’
motion to dismiss Plaintiff’s claim for negligence against Defendant Fajardo to
the extent the claim is based on administration of the PPD test.
5.
Respondeat Superior Claim Against Corizon (Count VI)
Plaintiff alleges that Corizon is liable for the tortious acts of Campbell
and Fajardo who were employees or agents of Corizon and were acting within
the scope of their agency or employment. (Second Am. Compl., [34-1] ¶ 77.)
Defendants’ sole response to this claim is, if the individual Defendants did not
violate state law, Corizon cannot be held vicariously liable. (Def.s’ MTD Br.,
[28-1] at 19; Def.s’ Reply, [37] at 10.) Therefore, to the extent state-law tort
claims remain against Defendant Fajardo, Plaintiff’s respondeat superior claim
against Corizon remains and Defendants’ motion to dismiss the claim is
DENIED.
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Conclusion
Based on the foregoing, Plaintiff’s Motion for Leave to Amend [34] is
GRANTED and Medical Defendants’ Motion to Dismiss [28] is DENIED in
part and GRANTED in part.
Defendants’ motion is granted as to the following claims:
•
First Amendment retaliation claim against Defendant Campbell;
•
First Amendment retaliation claim against Defendant Fajardo insofar as it
is based on conspiracy to use force in retaliation for protected speech;
•
Fourteenth Amendment excessive force claim against Defendant Fajardo;
•
State-Law battery claim against Defendant Fajardo insofar as it is based
on an alleged conspiracy to commit battery; and
•
Negligence claim against Defendant Campbell.
The remaining claims are:
•
First Amendment retaliation claim against Defendant Fajardo insofar as it
is based on administration of the PPD test;
•
State-law battery claim against Defendant Fajardo insofar as it is based
on administration of the PPD test;
•
Negligence claim against Defendant Fajardo insofar as it is based on
administration of the PPD test; and
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•
Respondeat Superior claim against Corizon to the extent state-law tort
claims remain against Defendant Fajardo.
SO ORDERED, this 30th day of September, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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