Gibson v. Mann et al
Filing
9
OPINION AND ORDER adopting Magistrate Judge Gerrilyn G. Brills Final Report and Recommendation 7 and dismissing this action. Signed by Judge William S. Duffey, Jr on 9/27/16. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BARRY LYNN GIBSON,
Plaintiff,
v.
1:15-cv-3015-WSD
SHERIFF JEFFERY L. MANN,
DR. DUNBAR,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Gerrilyn G. Brill’s Final
Report and Recommendation [7] (“R&R”), recommending that this action be
dismissed for failure to state a claim upon which relief may be granted.
On August 7, 2015, Plaintiff Barry Lynn Gibson (“Plaintiff”), proceeding
pro se, filed his Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 [1]
(“Complaint”), alleging that officials at the DeKalb County Jail (“Jail”), where he
is confined, demonstrated deliberate indifference to his medical needs. On
September 29, 2015, the Magistrate Judge issued her Order [4], finding that
Plaintiff’s Complaint did not adequately state a claim, and permitting him to file an
amended complaint to cure his pleading deficiencies. On October 7, 2015,
Plaintiff filed his amended Civil Rights Complaint Pursuant to 42 U.S.C.
§ 1983 [6] (“Amended Complaint”). On October 23, 2015, the Magistrate Judge
issued her R&R, recommending that Plaintiff’s Amended Complaint be dismissed
for failure to state a claim upon which relief may be granted. Plaintiff has not filed
objections to the R&R, and the Court thus reviews it for plain error. See
United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S.
1050 (1984).
The Eighth Amendment’s proscription against cruel and unusual punishment
prevents prison personnel from subjecting an inmate to “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Wallace v. Hammontree, 615 F. App’x 666, 667 (11th Cir. 2015) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). To establish deliberate indifference,
a plaintiff must establish “(1) a serious medical need; (2) the defendants’ deliberate
indifference to that need; and (3) causation between that indifference and the
plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir.
2009). A defendant is deliberately indifferent only if he subjectively knew of a
risk of serious harm and disregarded that risk by conduct beyond gross negligence.
Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010). The
defendant’s conduct must be “so grossly incompetent, inadequate, or excessive as
to shock the conscience or to be intolerable to fundamental fairness.”
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Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991); see Wallace, 615 F.
App’x at 667.
Plaintiff alleges that he has glaucoma for which he has been prescribed
liquid eye drops. ([6] at 6). He claims that his vision has gotten worse because the
Jail did not provide him with his eye medication in May and June of 2015, and has
not provided him with an eye exam despite his requests. ([6] at 3-4). Plaintiff
seeks $150,000 in damages and release from the Jail. ([6] at 4). The Magistrate
Judge found that Plaintiff’s allegations may suggest negligence but do not
plausibly show that Defendants engaged in conduct that shocks the conscience or
is intolerable to fundamental fairness. The Court finds no plain error in this
determination. See Wallace, 615 F. App’x at 667–68 (noting that claims
“amount[ing] to medical malpractice . . . do[] not rise to the level of a
constitutional violation,” and finding insufficient plaintiff’s allegations that a
doctor unnecessarily removed his kidney).
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Gerrilyn G. Brill’s Final
Report and Recommendation [7] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED.
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SO ORDERED this 27th day of September, 2016.
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