Johnson v. Forsyth County Board of Commissioners et al

Filing 12

ORDER: The Court OVERRULES in part and GRANTS in part Plaintiffs 11 Objections, as set forth above, and ADOPTS the Magistrate Judges 8 Non-Final Report and Recommendation, with the exceptions noted below. Plaintiffs claims are ALLOWED TO PROCEED as follows: 1. his three access-to-courts claims against former Sheriff Paxton in his individual capacity and current Sheriff Piper in both his individual and official capacities; 2. his medical deliberate indifference claim against Sheriff Piper in his officialcapacity and against Lt. Fee, Sgt. Hughes and Nurse Tanya LNU; 3. his Max-Iso retaliation claim against Sheriff Piper, Capt. Smith, Lt. Fee and Sgt. Hughes;4. his disciplinary-report retaliation claim against Officers Gay, Hobbs and Cole ; and 5. his conditions-of-confinement claim against Sheriff Piper in his official capacity and against Capt. Smith, Lt. Fee and Sgt. Hughes. To the extent Plaintiff has raised any other claims, they are DISMISSED, and all of the other Defendantsincl uding the Forsyth County Board of Commissioners, Major Wilson, North Atlanta Surgical Associates and/or its doctors, Correct Health, and unnamed and unknown FCSO and/or FCDC officersare also DISMISSED.The Clerk is DIRECTED to submit this matter to the Magistrate Judge for further proceedings. Plaintiffs 10 motion for an extension of time to file his objections is GRANTED. Signed by Judge Richard W. Story on 04/14/15. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
RICKY J. JOHNSON,
GDC ID # 1124129,
Plaintiff,

:
:
:
:
v.
:
:
FORSYTH CNTY. BD. of COMM’RS, :
MAJ. TOM WILSON,
:
TED PAXTON, Former Sheriff,
:
UNKNOWN F.C.S.O. DEPUTIES,
:
Defendants.
:

CIVIL ACTION NO.
2:14-CV-00173-RWS-JCF

PRISONER CIVIL RIGHTS
42 U.S.C. § 1983

ORDER
Plaintiff has sued numerous Defendants on several claims, which he raises in
his initial (Doc. 1) and supplemental (Doc. 7) complaints. The Magistrate Judge’s
Non-Final Report and Recommendation (“Report”) (Doc. 8) recommends (1)
allowing Plaintiff’s three access-to-courts claims to proceed against the former and
current Sheriffs of Forsyth County, Sheriffs Paxton and Piper, respectively; (2)
allowing Plaintiff’s medical deliberate indifference claim to proceed against Sheriff
Piper and three other individual Defendants; (3) allowing Plaintiff’s two retaliation
claims to proceed against Sheriff Piper and six other individual Defendants; and (4)
dismissing Plaintiff’s conditions-of-confinement claim and the remaining

AO 72A
(Rev.8/82)

Defendants. (Report at 27-28; see Doc. 6). Plaintiff objects. (Doc. 11). Plaintiff’s
motion for an extension of time to file his objections (Doc. 10) is GRANTED.
In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of
Civil Procedure, the Court has conducted a de novo review of those portions of the
Report to which Plaintiff objects, and has reviewed the remainder of the Report for
plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
I.

Plaintiff’s Objections
A.

The Conditions of Confinement Claim

Plaintiff first objects that he has stated a plausible claim for relief regarding the
conditions of his confinement in Maximum Isolation (“Max Iso”) at the Forsyth
County Detention Center (“FCDC”) during a period of approximately three months.
(Doc. 11 at 2-7). The Report summarizes Plaintiff’s claim in this regard as follows:
Plaintiff alleges that he was subjected to inhumane conditions in the
Max Iso unit, including lights that were on 24 hours per day; no
recreation, sunlight or fresh air; and no access to puzzles, games or
books that are available to inmates housed elsewhere. (Doc. 7 at 11).
Plaintiff alleges that he spent over three months in Max Iso and now
suffers from various ailments induced by his stay there, including
insomnia, migraine headaches, a diminished ability to concentrate,
claustrophobia and shortness of breath. (Id.). . . . Plaintiff seeks to add
Sheriff Piper, Capt. Smith, Lt. Fee and Sgt. Hughes as Defendants to
this claim. (Id. at 16).

2

AO 72A
(Rev.8/82)

(Report at 23-24). The Report finds that given the short duration of Plaintiff’s Max
Iso detention, the conditions there did “not amount to an extreme deprivation of ‘the
minimal civilized measure of life’s necessities.’ ” (Id. at 25-26 (quoting Taylor v.
Adams, 221 F.3d 1254, 1257 (11th Cir. 2000))).
Plaintiff argues that “[s]ome courts have held constant illumination
unconstitutional.” (Doc. 11 at 3). He asserts that his claim “involves high intensity
lighting” in his Max Iso cell “for 24 hours per day for over three months, at over 150
watts.” (Id. at 4). Although there do not appear to be any decisions in Plaintiff’s
favor in this Circuit, courts in other Circuits have deemed the issue that Plaintiff
raises at least worthy of factual development beyond the frivolity review stage, and
some have granted relief on such claims. See, e.g., Obama v. Burl, 477 Fed. Appx.
409, 411-12 (8th Cir. 2012) (reversing 28 U.S.C. § 1915A dismissal of plaintiff’s
claim that “the constant lighting in isolation caused [him] inability to sleep, emotional
distress, and constant headaches”; remanding to district court for further
consideration of the claim; and citing Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th
Cir. 1996), to the effect that there is “no legitimate penological justification for
requiring inmates to suffer physical and psychological harm by living in constant
illumination”).
3

AO 72A
(Rev.8/82)

Plaintiff also argues that being “locked in a windowless cell approximately six
feet by nine feet (a small bathroom) without being permitted to go outside for
exercise or fresh air” for more than 90 days constitutes cruel and unusual punishment.
(Doc. 11 at 5); see Delaney v. DeTella, 256 F.3d 679, 681, 683-84 (6th Cir. 2001)
(affirming—because “exercise is no longer considered an optional form of recreation,
but is instead a necessary requirement for physical and mental well-being”—denial
of qualified immunity to prison guards on inmate’s claim that “for just over 6 months
. . . [he] was denied all out-of-cell exercise”; but noting that the length of time
without the opportunity for exercise is critical in assessing the constitutionality of the
denial).
Plaintiff’s objections to the Report’s recommendation to dismiss his
conditions-of-confinement claim are well-taken, and that claim will be allowed to
proceed with respect to the alleged constant illumination in his Max Iso cell and the
alleged complete denial of opportunities for out-of-cell exercise for more than 90
days.
B.

The Corporate Medical Defendants

Plaintiff next objects to the recommended dismissal of Correct Health and
North Atlanta Surgical Associates (“Surgical Associates”) with regard to his medical
4

AO 72A
(Rev.8/82)

deliberate indifference claim. (Doc. 11 at 7-11). With respect to Surgical Associates,
the Report states:
[A]lthough Plaintiff refers to Surgical Associates and/or its doctors as
the “medical provider” for the FCDC (Doc. 7 at 3-5), he alleges
specifically that Correct Health is the “contracted health care provider”
at the FCDC (id. at 13). Plaintiff cannot have it both ways. The Court
finds it implausible that the FCDC has two contracted health care
providers. Without more specific evidence indicating that Surgical
Associates is also a contracted health care provider for the FCDC, in
addition to Correct Health, the Court reaches the reasonable conclusion
that Surgical Associates is a private, not a state, actor under [42 U.S.C.]
§ 1983, and that from time to time it provides medical services, i.e.,
surgery, to FCDC inmates whom FCDC’s contracted health care
provider, Correct Health, has referred to Surgical Associates for
evaluation and/or treatment.
....
[Plaintiff’s] allegation—that after he was transferred back to [Georgia
Department of Corrections] custody in July 2013, Surgical Associates
canceled the hernia surgery it had scheduled for him in June
2013—does not constitute a plausible claim that the cancellation is one
of those “rare circumstances” that renders Surgical Associates a state
actor under the Eleventh Circuit’s three-part test or a plausible claim
that Surgical Associates and/or its doctors conspired with state actors at
the FCDC to deny Plaintiff necessary medical care.
(Report at 13, 18). With respect to Correct Health, the Report states:
[D]espite Plaintiff’s assertion that a Correct Health employee conspired
to deny his required surgery, his allegations in general suggest that
Correct Health itself was not indifferent to his medical needs, inasmuch
as he was recommended for hernia surgery on at least three separate
occasions. Correct Health may not be sued on a theory of supervisory
liability.
5

AO 72A
(Rev.8/82)

(Id. at 19).
Although the Report recommends that Plaintiff’s medical deliberate
indifference claim be allowed to proceed against Sheriff Piper and three others,
including a Correct Health employee (id.), Plaintiff objects that “[i]t is clear from the
policies and procedures . . . in the FCDC inmate handbook that authority over
virtually all medical decisions w[as] conferred upon the ‘facility physician’ ” (Doc.
11 at 11). Plaintiff argues that “[w]hether that authority is by way of employment or
contract [is] irrelevant to the fact that liability or some part of it is included with that
authority.” (Id.). Plaintiff seeks more time to identify the facility physician and
determine “[w]hether he is merely contracted by Correct Health, [Surgical
Associates], or the Detention Center,” which “can only be determined upon
completion of the discovery process.” (Id. at 9).
Even if Plaintiff ultimately identifies the “facility physician,” however, he may
not sue Correct Health or Surgical Associates on a theory of supervisory liability (see
Report at 19), although he may be able to sue one or both if he can establish that the
facility physician acted pursuant to a custom or policy of either or both.1 But

1

See Lannen v. Broward County Sheriff’s Office, No. 10-61311-CIV-SCOLA, 2013 U.S.
Dist. LEXIS 47735, at *6 (S.D. Fla. Mar. 25, 2013) (“[F]or a private corporation providing medical
care to inmates to be liable under § 1983, the plaintiff must satisfy the policy-or-custom

6

AO 72A
(Rev.8/82)

Plaintiff’s speculation about such a custom or policy is insufficient to maintain a
claim against either entity.2 His allegations, in fact, suggest just the opposite, i.e., that
there was no custom or policy of the FCDC contract health care provider to deny him
medical care, inasmuch as he was scheduled for surgery on three separate occasions.
The Court does not find it plausible that Correct Health would have a custom or
policy of scheduling an FCDC inmate for surgery not once but three times, only to
cancel the surgery at the last minute to save money, as Plaintiff suggests. Plaintiff’s
objections to the dismissal of Correct Health and Surgical Associates are therefore
overruled.
C.

The Forsyth County Board of Commissioners

Plaintiff next objects to the recommended dismissal of the Forsyth County
Board of Commissioners (“Board”). (Doc. 11 at 11-13). Plaintiff contends that

requirement. Liability can exist absent a formal written policy or even when the custom is contrary
to written policy. That is because a policy can be ‘established by showing a persistent and
widespread practice and an entity’s actual or constructive knowledge of such customs, though the
custom need not receive formal approval.’ ” (citations omitted) (citing Buckner v. Toro, 116 F.3d
450, 453 (11th Cir. 1997), and quoting German v. Broward County Sheriff’s Office, 315 Fed. Appx.
773, 776 (11th Cir. 2009) (emphasis added in Lannen))).
2

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice,” and “only a complaint that states a plausible claim for relief survives.”
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To be plausible, the complaint must contain
“well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct.”
Id. at 679.

7

AO 72A
(Rev.8/82)

because the Board has certain duties with respect to the maintenance and operation
of the FCDC, including to provide funding to the FCDC to enable it to offer adequate
medical care to its inmates, the Board should not be dismissed from this action.
Plaintiff also objects that this Court already allowed his access-to-courts claims to
proceed against the Board. (Id.). He has repeated this latter objection with respect
to the recommended dismissal of Major Wilson and the unnamed officers of the
Forsyth County Sheriff’s Office (“FCSO”). (See id. at 14-17).
The Report recommends dismissal of the Board as redundant because a suit
against the Board is in effect a suit against the County, and the County is already the
defendant-in-fact to Plaintiff’s medical-deliberate-indifference claim against the
current Forsyth County Sheriff in his official capacity, which will be allowed to
proceed. (See Report at 3-6, 8-9). And although Plaintiff’s access-to-courts claims
have already been allowed to proceed (see Doc. 6), the Court has yet to determine
against whom they may proceed, and it refrained from doing so previously to give
Plaintiff an opportunity to supplement his complaint (see id.). Plaintiff’s objection
is overruled.
D.

Major Tom Wilson

Plaintiff also objects to the recommended dismissal of Major Tom Wilson
8

AO 72A
(Rev.8/82)

because “as Detention Division Commander he is responsible for the policies and
procedures of the FCDC.” (Doc. 11 at 14). The Report recommends Wilson’s
dismissal because “Plaintiff has not alleged that Major Wilson participated personally
in the alleged violations of his constitutional rights and because it is recommended
that Plaintiff’s official capacity claims be allowed to proceed against the final
policymakers at the FCDC, the former and current Forsyth County Sheriffs.” (Report
at 27 n.7). Plaintiff speculates that Wilson may be liable as a supervisor for some of
the alleged violations of his constitutional rights, but he again refrains from making
any specific allegation against Wilson. (Doc. 11 at 14-16). This speculation is
insufficient to maintain a claim against Major Wilson. See Iqbal, 556 U.S. at 678-79.
Plaintiff’s objection is overruled.
E.

The Unnamed FCSO Officers

Finally, Plaintiff objects to the recommended dismissal of the unknown and
unnamed FCSO officers. Plaintiff asserts that the Eleventh Circuit has directed
courts to assist prisoners in identifying proper defendants. (Doc. 11 at 16-17). But
“[a]s a general matter, fictitious-party pleading is not permitted in federal court.”
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citing New v. Sports &
Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th Cir. 1997)). This case is no
9

AO 72A
(Rev.8/82)

exception. Although Plaintiff is free to name additional Defendants, his objection to
the recommended dismissal of the unnamed Defendants is overruled.
II.

Conclusion
The Court OVERRULES in part and GRANTS in part Plaintiff’s Objections

(Doc. 11), as set forth above, and ADOPTS the Magistrate Judge’s Non-Final Report
and Recommendation (Doc. 8), with the exceptions noted below.
Plaintiff’s claims are ALLOWED TO PROCEED as follows:
1.

his three access-to-courts claims against former Sheriff Paxton in his
individual capacity and current Sheriff Piper in both his individual and official
capacities;

2.

his medical deliberate indifference claim against Sheriff Piper in his official
capacity and against Lt. Fee, Sgt. Hughes and Nurse Tanya LNU;

3.

his Max-Iso retaliation claim against Sheriff Piper, Capt. Smith, Lt. Fee and
Sgt. Hughes;

4.

his disciplinary-report retaliation claim against Officers Gay, Hobbs and Cole;
and

5.

his conditions-of-confinement claim against Sheriff Piper in his official
capacity and against Capt. Smith, Lt. Fee and Sgt. Hughes.
To the extent Plaintiff has raised any other claims, they are DISMISSED, and

all of the other Defendants—including the Forsyth County Board of Commissioners,

10

AO 72A
(Rev.8/82)

Major Wilson, North Atlanta Surgical Associates and/or its doctors, Correct Health,
and unnamed and unknown FCSO and/or FCDC officers—are also DISMISSED.
The Clerk is DIRECTED to submit this matter to the Magistrate Judge for
further proceedings.
IT IS SO ORDERED this 14th day of April, 2015.

________________________________
RICHARD W. STORY
United States District Judge

11

AO 72A
(Rev.8/82)