Thomas v. Massey et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's claims against Defendants Massey, Austin, and Heath re 1 Complaint filed by Mickel A. Thomas. Any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 1/26/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/12/2016. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

MICKEL A. THOMAS,
Plaintiff,

CIVIL ACTION NO.: 2:15-cv-132

v.
CAPTAIN VANESSA MASSEY; CAPTAIN
RANDY AUSTIN; MAJOR MICHAEL
HEATH; COLONEL JUDY LOWE; NURSE
TAWANA HALL,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Glynn County Detention Center in Brunswick,
Georgia, submitted a Complaint in the above captioned action pursuant to 42 U.S.C. § 1983.
(Doc. 1.) For the reasons set forth below, Plaintiff’s claims regarding denial of access to medical
care should proceed against Defendants Judy Lowe and Tawana Hall.

However, I

RECOMMEND that the Court DISMISS Plaintiff’s claims against Defendants Vanessa
Massey, Randy Austin, and Michael Heath. The Court DIRECTS the United States Marshal to
serve Defendants Lowe and Hall with a copy of Plaintiff’s Complaint, (doc. 1), and this Order.
BACKGROUND
Plaintiff alleges that Defendants have denied him medical care, including medication that
Plaintiff has been prescribed for mental illness. (Doc. 1, pp. 5–6.) These issues began on
July 27, 2015, when an inmate in Plaintiff’s dorm area attempted to commit suicide by ingesting
some pills. (Id. at p. 5.) Jail officials believed that Plaintiff supplied the pills to the other inmate

from medication that Plaintiff had been prescribed. Id. However, Plaintiff denies that the pills
were his. Id.
On the afternoon of July 29, 2015, Plaintiff passed out and fell. Id. After the fall, Nurse
Tawana Hall checked Plaintiff’s blood pressure and found it to be high. Id. Nurse Hall ordered
a wheelchair for Plaintiff to travel to the nursing station. Id. While traveling to medical,
Plaintiff and Hall encountered Defendant Major Michael Heath. Id. Defendant Heath denied
that Plaintiff had fallen and told Plaintiff that he was going to “place [Plaintiff] somewhere
[Plaintiff] did not want to be.” Id. At the nursing station, Plaintiff did not see a doctor or go to a
hospital for an evaluation of his head injuries. (Id. at p. 6.) He also did not receive treatment for
his blood pressure. Id.
When Plaintiff left the nursing station, Defendant Colonel Judy Lowe ordered that
Plaintiff be transferred to a padded room. Id. Plaintiff remained in the padded room for seventytwo hours. Id. Upon his release from the padded room, Plaintiff asked Defendant Hall and
others about his medication. Id. Hall and the others responded that whether Plaintiff would
receive the medication was up to Defendant Lowe. Id. They did not give Plaintiff any reason for
the discontinuance of his mental health medication. Id.
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. Under 28
U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment
of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows
an inability to pay the filing fee and also includes a statement of the nature of the action which
shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must
dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be

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granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the
Court must review a complaint in which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is
frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and

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dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).
DISCUSSION
I.

Supervisory Liability Claims Against Defendants Massey and Austin
Section 1983 liability must be based on something more than a defendant’s supervisory

position or a theory of respondeat superior. 1 Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir.
2009); Braddy v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th Cir. 1998). A
supervisor may be liable only through personal participation in the alleged constitutional
violation or when there is a causal connection between the supervisor’s conduct and the alleged
violations. Braddy, 133 F.3d at 802. “To state a claim against a supervisory defendant, the
plaintiff must allege (1) the supervisor’s personal involvement in the violation of his
constitutional rights, (2) the existence of a custom or policy that resulted in deliberate
indifference to the plaintiff’s constitutional rights, (3) facts supporting an inference that the
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The principle that respondeat superior is not a cognizable theory of liability under Section 1983 holds
true regardless of whether the entity sued is a state, municipality, or private corporation. Harvey v.
Harvey, 949 F.2d 1127, 1129–30 (11th Cir. 1992).

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supervisor directed the unlawful action or knowingly failed to prevent it, or (4) a history of
widespread abuse that put the supervisor on notice of an alleged deprivation that he then failed to
correct.” Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011).
It appears that Plaintiff has named Captain Vanessa Massey and Captain Randy Austin as
Defendants based solely on their positions in the jail administration. Plaintiff does not allege any
facts that could lead to the plausible conclusion that these Defendants were even aware of his
conditions, much less about the lack of treatment for those conditions. See Farmer v. Brennan,
511 U.S. 825, 828 (1994) (“In order to be held liable under the Eighth Amendment, a prison
official must know that the inmate faces a substantial risk of serious harm and then disregard that
risk.”) Accordingly, the Court should DISMISS Plaintiff’s claims against Defendants Massey
and Austin.
II.

Denial of Medical Care Claims
The cruel and unusual punishment standard of the Eighth Amendment 2 requires prison

officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care.”
Farmer, 511 U.S. at 832. Generally speaking, however, “prison conditions rise to the level of an
Eighth Amendment violation only when they involve the wanton and unnecessary infliction of
pain.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (quotations omitted). Thus,
not all deficiencies and inadequacies in prison conditions amount to a violation of a prisoner’s
constitutional rights. Rhodes v. Chapman, 452 U.S. 337, 349 (1981). The Constitution does not
mandate comfortable prisons. Id. Prison conditions violate the Eighth Amendment only when

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“Claims involving the mistreatment of pretrial detainees in custody are governed by the Fourteenth
Amendment’s Due Process Clause instead of the Eighth Amendment’s Cruel and Unusual Punishment
Clause, which applies to such claims by convicted prisoners.” Bozeman v. Orum, 422 F.3d 1265, 1271
(11th Cir. 2005) (internal citation and punctuation omitted), abrogated on other grounds by Kingsley v.
Hendrickson, ___ U.S. ___, 135 S. Ct. 2466 (June 22, 2015). However, “decisional law involving prison
inmates applies equally to cases involving pretrial detainees.” Id. (internal punctuation omitted).

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the prisoner is deprived of “the minimal civilized measure of life’s necessities.” Id. at 347.
However, “[c]ontemporary standards of decency must be brought to bear in determining whether
a punishment is cruel and unusual.” Bass v. Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999).
In the medical care context, the standard for cruel and unusual punishment, embodied in
the principles expressed in Estelle v. Gamble, 429 U.S. 97, 104 (1976), is whether a prison
official exhibits a deliberate indifference to the serious medical needs of an inmate. Farmer, 511
U.S. at 828. However, “not every claim by a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment.” Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991) (quoting Estelle, 429 U.S. at 105). Rather, “an inmate must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994).
In order to prove a deliberate indifference claim, a detainee must overcome three
obstacles. The detainee must: 1) “satisfy the objective component by showing that [he] had a
serious medical need”; 2) “satisfy the subjective component by showing that the prison official
acted with deliberate indifference to [his] serious medical need”; and 3) “show that the injury
was caused by the defendant’s wrongful conduct.” Goebert v. Lee Cty., 510 F.3d 1312, 1326
(11th Cir. 2007). A medical need is serious if it “’has been diagnosed by a physician as
mandating treatment or [is] one that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.’” Id. (quoting Hill, 40 F.3d at 1187) (emphasis supplied).
As for the subjective component, the Eleventh Circuit has consistently required that “a defendant
know of and disregard an excessive risk to an inmate’s health and safety.” Haney v. City of
Cumming, 69 F.3d 1098, 1102 (11th Cir. 1995). Under the subjective prong, an inmate “must

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prove three things: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;
(3) by conduct that is more than [gross] negligence.” Goebert, 510 F.3d at 1327.
“The meaning of ‘more than gross negligence’ is not self-evident[.]” Id. In instances
where a deliberate indifference claim turns on a delay in treatment rather than the type of
medical care received, the factors considered are: “(1) the seriousness of the medical need; (2)
whether the delay worsened the medical condition; and (3) the reason for the delay.” Id. “When
the claim turns on the quality of the treatment provided, there is no constitutional violation as
long as the medical care provided to the inmate is ‘minimally adequate.’” Blanchard v. White
Cty. Det. Ctr. Staff, 262 F. App’x 959, 964 (11th Cir. 2008) (quoting Harris, 941 F.2d at 1504).
“Deliberate indifference is not established where an inmate received care but desired different
modes of treatment.” Id.
Based on Plaintiff’s allegations, he has medical needs including injuries to his head from
his fall, high blood pressure, and mental health issues for which he had been prescribed
medication. He has relayed those conditions and his need for treatment to Defendant Hall, and
those issues have been relayed to Defendant Lowe. However, Plaintiff has been denied any
treatment, and he has been told that he will not receive his mental health medication until
Defendant Lowe permits him to do so. Based on these facts, Plaintiff has stated plausible denial
of medical care claims against Defendants Hall and Lowe.
However, Plaintiff has not stated any plausible facts that Defendant Michael Heath had
any personal involvement in any denial of Plaintiff’s medical care or that he was otherwise
causally connected to such a denial. Plaintiff states that, on his way to medical, Defendant Heath
denied that Plaintiff had hit his head and commented the he was going to put Plaintiff somewhere
Plaintiff did not want to be. However, after this comment, Defendant Hall examined Plaintiff at

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the nursing station. Further, Plaintiff alleges that it was Defendant Lowe, not Defendant Heath,
who placed him in the padded room for seventy-two hours and that she has denied Plaintiff his
mental health medication. Thus, Plaintiff has not alleged sufficient facts to state a cognizable
claim against Defendant Heath, and the Court should DISMISS all claims against him.
CONCLUSION
For the reasons set forth above, I RECOMMEND that the Court DISMISS Plaintiff’s
claims against Defendants Massey, Austin, and Heath.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff.
REMAINING CLAIMS AND DEFENDANTS
Plaintiff’s allegations in his Complaint arguably state colorable claims for denial of
adequate medical care under 42 U.S.C. § 1983 and the Eighth Amendment against Defendants
Lowe and Hall. Consequently, a copy of Plaintiff’s Complaint and a copy of this Order shall be
served upon Defendants Lowe and Hall by the United States Marshal without prepayment of
cost. The Court also provides the following instructions to the parties that will apply to the
remainder of this action and which the Court urges the parties to read and follow.
INSTRUCTIONS TO DEFENDANTS
Because Plaintiff is proceeding in forma pauperis, the undersigned directs that service be
effected by the United States Marshal. Fed. R. Civ. P. 4(c)(3). In most cases, the marshal will
first mail a copy of the complaint to the Defendant by first-class mail and request that the
defendant waive formal service of summons. Fed. R. Civ. P. 4(d); Local Rule 4.7. Individual
and corporate defendants have a duty to avoid unnecessary costs of serving the summons, and
any such defendant who fails to comply with the request for waiver must bear the costs of
personal service unless good cause can be shown for the failure to return the waiver. Fed. R.
Civ. P. 4(d)(2). Generally, a defendant who timely returns the waiver is not required to answer
the complaint until sixty (60) days after the date that the marshal sent the request for waiver.
Fed. R. Civ. P. 4(d)(3).
IT IS FURTHER ORDERED that Defendants are hereby granted leave of court to take
the deposition of the Plaintiff upon oral examination. Fed. R. Civ. P. 30(a). Defendants are
further advised that the Court’s standard 140 day discovery period will commence upon the

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filing of the last answer. Local Rule 26.1. Defendants shall ensure that all discovery, including
the Plaintiff’s deposition and any other depositions in the case, is completed within that
discovery period.
In the event that Defendants take the deposition of any other person, Defendants are
ordered to comply with the requirements of Federal Rule of Civil Procedure 30. As the Plaintiff
will likely not be in attendance for such a deposition, Defendants shall notify Plaintiff of the
deposition and advise him that he may serve on Defendants, in a sealed envelope, within ten (10)
days of the notice of deposition, written questions the Plaintiff wishes to propound to the
witness, if any. Defendants shall present such questions to the witness seriatim during the
deposition. Fed. R. Civ. P. 30(c).
INSTRUCTIONS TO PLAINTIFF
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants or, if
appearance has been entered by counsel, upon their attorneys, a copy of every further pleading or
other document submitted for consideration by the Court. Plaintiff shall include with the original
paper to be filed with the Clerk of Court a certificate stating the date on which a true and correct
copy of any document was mailed to Defendants or his counsel. Fed. R. Civ. P. 5. “Every
pleading shall contain a caption setting forth the name of the court, the title of the action, [and]
the file number.” Fed. R. Civ. P. 10(a).
Plaintiff is charged with the responsibility of immediately informing this Court and
defense counsel of any change of address during the pendency of this action. Local Rule 11.1.
Plaintiff’s failure to notify the Court of a change in his address may result in dismissal of this
case.

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Plaintiff has the responsibility for pursuing this case. For example, if Plaintiff wishes to
obtain facts and information about the case from Defendants, Plaintiff must initiate discovery.
See generally, Fed. R. Civ. P. 26, et seq. The discovery period in this case will expire 140 days
after the filing of the last answer. Local Rule 26.1. Plaintiff does not need the permission of the
Court to begin discovery, and Plaintiff should begin discovery promptly and complete it within
this time period. Local Rule 26.1. Discovery materials should not be filed routinely with the
Clerk of Court; exceptions include: when the Court directs filing; when a party needs such
materials in connection with a motion or response, and then only to the extent necessary; and
when needed for use at trial. Local Rule 26.4.
Interrogatories are a practical method of discovery for incarcerated persons. See Fed. R.
Civ. P. 33. Interrogatories may be served only on a party to the litigation, and, for the purposes
of the instant case, this means that interrogatories should not be directed to persons or
organizations who are not named as a Defendant. Interrogatories are not to contain more than
twenty-five (25) questions. Fed. R. Civ. P. 33(a). If Plaintiff wishes to propound more than
twenty-five (25) interrogatories to a party, Plaintiff must have permission of the Court. If
Plaintiff wishes to file a motion to compel, pursuant to Federal Rule of Civil Procedure 37, he
should first contact the attorneys for Defendants and try to work out the problem; if Plaintiff
proceeds with the motion to compel, he should also file a statement certifying that he has
contacted opposing counsel in a good faith effort to resolve any dispute about discovery. Fed. R.
Civ. P. 26(c); 37(a)(2)(A); Local Rule 26.7.
Plaintiff has the responsibility for maintaining his own records of the case. If Plaintiff
loses papers and needs new copies, he may obtain them from the Clerk of Court at the standard
cost of fifty cents ($.50) per page. If Plaintiff seeks copies, he should request them directly

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from the Clerk of Court and is advised that the Court will authorize and require the
collection of fees from his prison trust fund account to pay the cost of the copies at the
aforementioned rate of fifty cents ($.50) per page.
If Plaintiff does not press his case forward, the court may dismiss it for want of
prosecution. Fed. R. Civ. P. 41; Local Rule 41.1.
It is Plaintiff’s duty to cooperate fully in any discovery which may be initiated by
Defendants. Upon no less than five (5) days’ notice of the scheduled deposition date, the
Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath or
solemn affirmation, any question which seeks information relevant to the subject matter of the
pending action. Failing to answer questions at the deposition or giving evasive or incomplete
responses to questions will not be tolerated and may subject Plaintiff to severe sanctions,
including dismissal of this case.
As the case progresses, Plaintiff may receive a notice addressed to “counsel of record”
directing the parties to prepare and submit a Joint Status Report and a Proposed Pretrial Order.
A plaintiff proceeding without counsel may prepare and file a unilateral Status Report and is
required to prepare and file his own version of the Proposed Pretrial Order. A plaintiff who is
incarcerated shall not be required or entitled to attend any status or pretrial conference which
may be scheduled by the Court.
ADDITIONAL INSTRUCTIONS TO PLAINTIFF REGARDING
MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT
Under this Court’s Local Rules, a party opposing a motion to dismiss shall file and serve
his response to the motion within fourteen (14) days of its service. “Failure to respond shall
indicate that there is no opposition to a motion.” Local Rule 7.5. Therefore, if Plaintiff fails to
respond to a motion to dismiss, the Court will assume that he does not oppose the Defendants’

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motion. Plaintiff’s case may be dismissed for lack of prosecution if Plaintiff fails to respond to a
motion to dismiss.
Plaintiff’s response to a motion for summary judgment must be filed within twentyone (21) days after service of the motion. Local Rules 7.5, 56.1. The failure to respond to such a
motion shall indicate that there is no opposition to the motion. Furthermore, each material fact
set forth in the Defendants’ statement of material facts will be deemed admitted unless
specifically controverted by an opposition statement. Should Defendants file a motion for
summary judgment, Plaintiff is advised that he will have the burden of establishing the existence
of a genuine dispute as to any material fact in this case. That burden cannot be carried by
reliance on the conclusory allegations contained within the complaint. Should the Defendants’
motion for summary judgment be supported by affidavit, Plaintiff must file counter-affidavits if
he desires to contest the Defendants’ statement of the facts. Should Plaintiff fail to file opposing
affidavits setting forth specific facts showing that there is a genuine dispute for trial, any factual
assertions made in Defendants’ affidavits will be accepted as true and summary judgment may
be entered against the Plaintiff pursuant to Federal Rule of Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of January,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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