Forbes v. Cownes et al

Filing 28

ORDER granting in part and denying in part 17 Motion to Dismiss, Plaintiff's claims against Defendant Smith are DISMISSED. The parties are directed to confer as required by Local Rule 26.1 within 14 days hereof, and they shall submit a joint Rule 26(f) Report within 21 days hereof. Signed by Judge Dudley H. Bowen on 06/18/2018. (maa)

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

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in

DUBLIN DIVISION

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•

CHANTE FORBES, individually

—H,

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and as Administratrix of the
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ESTATE OF UCOLLOS OWENS

(deceased),

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Plaintiff,

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CV 317-033

V.

KENNETH COWENS, M.D. / ANNIE
BODI, P.A.C.; and KIMBERLY
SMITH, R.N.,
Defendants.

ORDER

Before the Court is Defendants' Motion to Dismiss (doc.

no. 17).

Plaintiff filed a response in opposition (doc. no.

22) and Defendants filed a reply in support (doc. no. 27).

Accordingly, Defendants' motion has been fully briefed and is
ripe for review.

I.

The

facts

of

BACKGROUND

Plaintiff's

Amended

Complaint

are

as

follows. Ucollos Owens ("Decedent") was a prisoner at Johnson
State Prison ("JSP") who suffered from mild to moderate asthma

and severe Chronic Obstructive Pulmonary Disease ("COPD").

(Am. Compl., Doc. No. 12, ^ 25.)
Decedent

received

several

During his stay at JSP,

prescriptions

for

his

asthma

.<o
—5

including Albuterol/ Xopenex, Astrovent, and QVAR.

(Id. H

26.) Despite taking these medications, Decedent continued to

experience difficulty breathing.

(Id. f 30.)

Decedent

suffered "asthma exacerbations" on December 19, 2014, March

23, June 18, and July 7, 2015.

(Id. H 30.)

To treat Decedent's asthma. Defendants were supposed to
conduct a review of Decedent's chronic care treatment plan

every six months.

(Id. ^ 32.)

Defendants, however, missed

one of these reviews, which was scheduled to take place in
April 2015.

(Id.)

On July 2, 2015, Decedent visited the JSP Medical Center

complaining about a cough and congestion. (Id. H 32.) A peak
expiratory flow measurement was taken and revealed a reading
of 230, which was apparently indicative of asthma.
Aff.,

Doc.

No.

12-1,

t

8.)^

Decedent

was

(Mendel

referred

to

Defendant Kenneth Cowens, M.D.,^ who prescribed antibiotics,
steroids, nebulizer treatments, and ordered a chest x-ray.

(Am. Compl. H 33.)

Dr. Cowens also scheduled a follow-up

appointment, but that appointment was apparently cancelled.

^ Documents attached to a pleading may be considered for the purposes of
a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

Horslev V. Feldt. 304 F.3d 1125, 1134 (11th Cir. 2002). Although Defendant

objects to considering expert affidavits at the pleading stage, the Court
only considers the factual allegations contained therein.
See Fin.
Acquisition Partners. LP v. Blackwell. 2004 WL 2203253, at *4 (N.D. Tex.

Sept. 29, 2004) (finding it appropriate to consider the nonconclusory
assertions within an expert affidavit).

^ Dr. Cowens name was initially misspelled "Cownes" but is now correctly
used here.

(See Doc. No. 7, at 1 n.l.)

(Id. HH 34-35.) On July 15, Decedent was given an x-ray which
revealed an "8mm nodular density overlying the right upper

lung zone superimposed on posterior right sixth/anterior right
third rib."^

(Id.

34-36.)

On August 18, Decedent returned to the Medical Center,
complaining about his persisting cough and asthma symptoms.

(Id. H 37.)

Decedent was examined by Defendant Annie Kristen

Andrews Bodi, P.A.

(Id. ^ 38.)

Although she was skeptical

about the severity of Decedent's coughing, Ms. Bodi diagnosed
Decedent with bronchitis and prescribed a bottle of Robitussin
and instructed Decedent to restart his Astrovent, Singulair,

QVAR, and Xopenex. (Id.

38, 40.) Decedent had prematurely

run out of all of these medications except Xopenex.

(Id.)

Ms. Bodi also ordered another x-ray, which revealed "no acute

or active cardiopulmonary disease."

(Id. 1 41.)

Decedent returned to JSP Medical Center at 4:35 pm on

August 24, 2015, complaining of shortness of breath and
wheezing.

(Id. H 44.)

Decedent informed Defendants that he

had run out of the medication in his inhaler.

(Id. ^ 47.)

Defendant Kimberly Smith took Decedent's vitals and referred
him to Dr. Cowens who diagnosed Decedent with bronchitis and

prescribed an Albuterol nebulizer breathing treatment.

(Id.

t 48.) When Decedent's symptoms continued to deteriorate, Ms.
^ Plaintiff does not identify what impact the "nodular density" had on
Decedent's symptoms.

Bodi ordered a second nebulizer treatment and directed her

staff to call the paramedics. (Id.) Shortly after beginning
the second nebulizer treament, Decedent began yelling for

help, stating that he could not breathe.

(Id.

50-51.)

Johnson County paramedics received the emergency call at

5:17 p.m. and arrived at JSP Medical Center at 5:24 p.m. (Id.
f52.)

Decedent was rushed to the Fairview Park Hospital but

was pronounced dead at 6:17 p.m. (Id. UK 53-54.) Decedent's
autopsy revealed the cause of death was an "acute asthma
exacerbation."

Plaintiff

(Id. K 56.)

Chante

Forbes,

Decedent's

daughter

and

administratrix of his estate, initiated this action on June 7,

2017.

Plaintiff alleges that Defendants were deliberately

indifferent to Decedent's serious medical needs, in violation

of his Eighth Amendment rights.

Defendants now move to

dismiss Plaintiff's Amended Complaint.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires that a

plaintiff's complaint contain "a short and plain statement of
the claim showing that the pleader is entitled to relief."
Fed. R. Civ. P. 8(a)(2).

To survive a motion to dismiss for

failure to state a claim upon which relief can be granted, a

complaint must include enough "factual allegations to raise a

right to relief above the speculative level," and those facts
must "state a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 545, 570 (2007).

Although a complaint does not need to be buttressed by
detailed

factual

allegations,

the

plaintiff's

pleading

"requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do."

Id. at 555.

The Rule 8 pleading standard "demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation."
Ashcroft V. Iqbal. 556 U.S. 662, 678 (2009) (quoting Twomblv,
550 U.S. at 555).

A complaint should not be dismissed for failure to state
a claim, however, "unless it appears beyond a doubt that the

plaintiff can prove no set of circumstances that would entitle
him to relief."

Conlev v. Gibson. 355 U.S. 41, 45-46 (1957);

see also Robinson v. United States. 484 F. App'x 421, 423

(11th Cir. 2012) (quoting Lopez v. First Union Nat'l Bank of
Fla.. 129 F.3d 1186, 1189 (11th Cir. 1997)).

At this stage,

courts must accept all factual allegations in the complaint
and construe all reasonable inferences in the light most

favorable to the plaintiff.

Belanaer v. Salvation Army. 556

F.3d 1153, 1155 (11th Cir. 2009) (citing Jackson v. Bellsouth
Telecomm.. 372 F.3d 1250, 1262 (11th Cir. 2004)).

III.

DISCUSSION

Defendants argue that because Plaintiff has failed to
allege a constitutional violation, Defendants are entitled to
qualified immunity.

Qualified immunity protects government officials from

suit so long as their conduct does not violate a clearly
established

constitutional

right.

Morris

v.

Town

of

Lexington. 748 F.3d 1316, 1321 n.l5 (llth Cir. 2014).

To

invoke qualified immunity, a defendant must first establish

that he was acting within his discretionary authority.^
Holloman ex rel. Holloman v. Harland.

370 F.3d 1252, 1265

(llth Cir. 2004). The burden then shifts to the plaintiff who

must demonstrate that qualified immunity is not appropriate.
Lee V. Ferraro, 284 F.3d 1188, 1194 (llth Cir. 2002).

To

survive a motion to dismiss, a plaintiff must allege facts
that

(1)

establish

a

constitutional

violation

and

(2)

demonstrate that the right violated was clearly established
when the violation occurred.

A.

Id.

Constitutional Violation

Plaintiff

claims

that

by

failing

to

properly

treat

Decedent's asthma. Defendants were deliberately indifferent to
Decedent's

serious

medical

needs

violating

the

Eighth

* Plaintiff concedes that Defendants herein were acting within their

I

discretionary authority. (Doc. No. 22, at 14.)

Amendment's prohibition of unnecessary and wanton infliction
of pain.

To establish deliberate indifference, the plaintiff must

show that:

(1) she

had a serious

medical need; (2) the

defendant was deliberately indifferent to that need; and (3)
that

the

defendant's

indifference

caused

the

plaintiff's

injury. Goebert v. Lee Cntv.. 510 F.3d 1312, 1326 (11th Cir.
2007).

The parties agree that Decedent had a serious medical

need; the last two elements are in dispute.
I.

Defendant's Deliberate Indifference

To prove the second element of a deliberate indifference
claim, the plaintiff must establish that the defendant was

deliberately indifferent to the plaintiff's serious medical
need. Brown v. Johnson. 387 F.3d 1344, 1351 (11th Cir. 2004).

To meet this standard, the plaintiff "must prove three facts:

(1) subjective knowledge of a risk of serious harm; (2)
disregard of that risk; and (3) by conduct that is more than
mere negligence."

Id.

To satisfy the subjective element, a defendant "must both
be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also
draw the inference."

(1994).

Farmer v. Brennan. 511 U.S. 825, 837

"Whether a particular defendant has

subjective

knowledge of the risk of serious harm is a question of fact

subject

to

demonstration

in

the

usual

ways,

including

inference from circumstantial evidence, and a factfinder may

conclude that a [defendant] knew of a substantial risk from

the very fact that the risk was obvious."
at 1312.

In this case,

expiratory flow

Goebert, 510 F.3d

the results of Decedent's peak

measurement

indicated

that Decedent

was

suffering from uncontrolled asthma during his appointment with
Dr. Cowens on July 2, 2015. (I^ HH 33, 35.) With respect to
Ms. Bodi, Plaintiff alleges that Decedent was suffering from

a persistent cough and had prematurely run out of his asthma
medication when he met with Ms. Bodi on August 18, 2015.

(Id.

tH 37-40.) Accordingly, Plaintiff has alleged that Dr. Cowens

and Ms. Bodi had subjective knowledge of facts from which they
could infer that a substantial risk existed and that they in
fact drew that inference.

To demonstrate "disregard of the risk," a plaintiff must

show that the defendant "disregard[ed] [the substantial risk
of serious harm to the inmate] by failing to take reasonable
measures to abate it."

Farmer. 511 U.S. at 847.

Thus, even

if a defendant actually knew of a risk, he will not be held
liable if he responded to that risk reasonably.

Id. at 844.

Nevertheless, disregard can be established through a single
episode of misconduct.

Rogers v. Evans, 792 F.2d 1052, 1062

(11th Cir. 1986). Defendant argues that the Amended Complaint

shows that Dr. Cowens and Ms. Bodi provided prompt treatment
to Decedent.
failed

to

Plaintiff, however, alleges that Dr. Cowens

treat

Decedent's

asthma

when

his

follow-up

appointment was cancelled. (Am. Compl. IH 34-35.) Ms. Bodi,
on the other hand, failed to perform an expiratory flow
measurement and ordered Decedent to restart his medications,

which were apparently ineffective.

(Am. Compl. HH 34-35.)

Because both Dr. Cowens and Ms. Bodi's conduct may have been

unreasonable.

Plaintiff

has alleged that both Defendants

disregarded the risk of Decedent's uncontrolled asthma.
To show that the conduct was more than mere negligence,

the plaintiff must show that the care provided was "so grossly
incompetent,

inadequate,

or

excessive

as

to

shock

the

conscience or to be intolerable to fundamental fairness."

Rogers. 792 F.2d at 1058.

This includes providing an easier

but less effective treatment, providing treatment that is

grossly inadequate, or providing such minimal care that it
amounts to no treatment at all.

1248,

1255

(11th

Cir.

1999).

McElliaott v. Folev. 182 F.3d

The

Eleventh

Circuit

has

cautioned, however, that "[a]ccidents, mistakes, negligence,

and medical malpractice are not constitutional violations
merely because the victim is a prisoner."

Harris v. Coweta

Cnty.. 21 F.3d 388, 393 (11th Cir. 1994) (internal quotations
and alterations omitted).

Moreover, "[t]he propriety of a

certain course of medical treatment is not a proper subject
for review in a civil rights action."

Enriouez v. Kearnev,

694 F. Supp. 2d 1282, 1296 n.l3 (S.D. Fla. 2010); s^ also
Waldrop v. Evans. 871 F.2d 1030, 1033 (11th Cir.1989) (finding

that ^^a simple difference in medical opinion" is insufficient
to constitute deliberate indifference).

To hold a provider

liable for his medical judgment, a plaintiff may show that the

provider knew the appropriate treatment and failed to provide
it.

Adams v. Poaq. 61 F.3d 1537, 1546 (11th Cir. 1995).

Here, Plaintiff alleges that while Dr. Cowens scheduled a
follow up appointment, that appointment was later cancelled.
(Am. Compl. nil 34-35.)
Cowens

failed

to

Thus, Plaintiff has alleged that Dr.

provide

a

treatment

that

he

knew

was

necessary, namely checking to see if Decedent's symptoms had
subsided.

Plaintiff has also met this standard with respect to Ms.

Bodi. While Defendants attempt to couch Ms. Bodi's conduct in
terms of medical malpractice, finding that Ms. Bodi failed to
perform an expiratory measurement and simply ordered Decedent
to continue medications that were ineffective could support a
conclusion that Ms. Bodi chose an easier and less effective
course of treatment.

See

McElligott. 182 F.3d at 1255.

Plaintiff fails to demonstrate deliberate indifference

with respect to Ms. Smith, however. Plaintiff claims that Ms.

10

Smith

unreasonably

Specifically,

delayed

Plaintiff faults

Decedent's

treatment.

Ms. Smith in failing

immediately call the paramedics on August 24, 2015.

to

Unlike

Plaintiff's claims against Dr. Cowens and Ms. Bodi, Plaintiff

fails to allege facts that show Ms. Smith knew that calling
the

paramedics

influenced

by

was

necessary or

non-medical

that her

concerns.

decision

Without

was

such

an

allegation, Ms. Smith's decision to refer Decedent to Dr.
Cowens - instead of calling the paramedics - was a medical
judgment, not a constitutional violation.
Plaintiff also faults Defendants for failing to perform

Decedent's six-month asthma treatment plan evaluation, which
Plaintiff claims was a necessary component of Decedent's

asthma treatment.

While this might rise to the level of

deliberate indifference. Plaintiff fails to identify facts

that show any of the Defendants were individually responsible
for Decedent's asthma treatment.

"[I]mputed or collective

knowledge cannot serve as the basis for a claim of deliberate
indifference."
Cir.

2008).

Burnette v. Taylor. 533 F.3d 1325, 1331 (11th
''Each

individual

defendant

must

be

separately on the basis of what that person [knew]."
Here,

Plaintiff

merely

alleges

that

Defendants

judged

Id.
"were

responsible for ensuring that [Decedent's] medical condition

was properly monitored."

(Am. Compl. ^ 23.)

11

Without facts

showing that the individual defendants knew that Decedent's
treatment plan needed to be reevaluated and failed to do so,
Plaintiff does not state a claim for deliberate indifference
on this basis.
2.

Causation

The last element of a deliberate indifference claim -

causation

-

requires

that

a

plaintiff

^*show

constitutional violation caused his injuries."

that

the

Marsh v^

Butler Cntv.. 268 F.3d 1014, 1028 (llth Cir. 2001). Causation

can be established by the defendant's personal participation
in the constitutional violation.

Goebert, 510 F.3d at 1327.

Plaintiff alleges that Dr. Cowens and Ms. Bodi personally

participated in denying or providing Decedent inadequate
treatment.

But for Dr. Cowens and Ms. Bodi's failure to treat

Decedent's

asthma.

deteriorated.

Decedent's

condition

would

not

have

By alleging facts that show Dr. Cowens and Ms.

Bodi's personal involvement.

Plaintiff

pleads sufficient

causation in this case.

B.

Clearly Established Law

After a plaintiff alleges a constitutional violation,
the plaintiff must show that the rights violated were clearly
established

at

the

time

the

violation

occurred.

In

the

Eleventh Circuit, clearly established rights are those set by

precedent of the United States Supreme Court, the Eleventh

12

Circuit, or the law of the highest court of the state where
the violation took place.

Snider v. Jefferson State Cmty.

Coll.. 344 F.3d 1325, 1328 (11th Cir. 2003).

The case does

not need to be factually identical before the right is clearly
established.

Amnestv Int*l. USA v. Battle, 559 F.3d 1170,

1185 (11th Cir. 2009). Instead, the defendant only needs fair
notice

that

his

conduct

constitutional rights.

violated

the

plaintiff's

Id.

Plaintiff has alleged facts establishing that Dr. Cowens
and Ms. Bodi had fair notice that their actions violated

Decedent's

constitutional

established that

rights.

indifference."

Furthermore,

law

is

clearly

knowledge of the need for medical care and

an intentional refusal to provide
deliberate

The

"[a]

core

Adams.

principle

that care constitutes
61

of

F.3d

at

1543-44.

Eighth

Amendment

jurisprudence . . . is that prison officials with knowledge of
the need for care may not, by failing to provide care,
delaying care, or providing grossly inadequate care, cause a

prisoner to needlessly suffer the pain resulting from his or
her illness."

Cowens

and

McElliaott. 182 F.3d at 1257.

Ms.

Bodi's

entitlement

to

Accordingly, Dr.

qualified

immunity

depends on whether they knowingly provided Decedent with
inadequate

care.

Because

Plaintiff

13

has

alleged

such

knowledge, dismissal based on qualified immunity is not
appropriate at this stage.

IV.

Plaintiff

CONCLUSION

has alleged facts showing that Defendants

Cowens and Bodi intentionally refused to provide medical

treatment

that

they

knew

was

necessary,

Decedent's clearly established rights.
because Plaintiff failed to allege

which

violated

On the other hand,

that Defendant Smith

understood and appreciated that a more appropriate treatment

should have been pursued for Decedent, Plaintiff's claims
against Defendant Smith do not rise to the level of a
constitutional violation.

Upon due consideration, Defendants' Motion to Dismiss
(doc.

no.

17)

is

GRANTED

IN

PART

AND

DENIED

IN

PART.

Plaintiff's claims against Defendant Smith are DISMISSED. The

parties are directed to confer as required by Local Rule 26.1
within fourteen days hereof, and they shall s\ibmit a joint
Rule 26(f) Report within twenty-one days hereof.

ORDER ENTERED at Augusta, Georgi^ this

da]

June, 2018.

UNITED STATES/DISTRICT JUDGE

14