Ross v. Fogam, et al.

Filing 26

ORDER denying 19 Motion to Compel; denying 20 Motion for imposition of sanction and order for contempt ; denying 22 Motion for Default Judgment; denying 23 Motion to Appoint Counsel. Signed by Magistrate Judge G. R. Smith on 11/14/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MILTON ROSS,

)

)

Plaintiff,

)

)

Case No. CV411-198

V.

ERIC FOGAM, JACK KOON,'
ROBERT B. HUMES, and DAVID
MILTON,
Defendants.

REPORT AND RECOMMENDATION
Before the Court is Milton Ross's amended 42 U.S.C. § 1983 civil
rights complaint. (Doe. 17.) The Court screened his original complaint
pursuant to 28 U.S.C. § 1915 & 1915A (authorizing district courts to
screen prisoner and in forma pauperis complaints prior to service) and
found that it failed to state a claim for relief. (Doe. 14.) Nevertheless, it
permitted him an opportunity to remedy the complaint's failings,
prompting his submission of the present amended complaint, which the
Court will now examine to determine whether it states a colorable claim.

Ross, wheelchair bound after being shot in the back and hip during
his 2002 arrest, has undergone a series of medical procedures over the
years. (Doc. 17 at 4-6.) He had a spinal cord stimulator implanted in 2006
in order to help manage his chronic pain.
twice, requiring two more surgeries.

(Id. at 6.) The device failed

(Id.) In October 2010, he had to

have the stimulator removed due to a serious infection. (Id.) After that
surgery, he was told that he "should be" provided with a morphine pump
or a follow-up surgery to sever certain nerves to help him with pain
management.

(Id.)

He was transferred to Coastal State Prison the

following month, and according to Ross the medical staff has refused to
treat the pain with anything other than ineffectual pain killers, despite
his extensive treatment record.

(Id. at 7-8, 9.) After Ross fell in the

shower, Dr. Fogam, the facility's chief medical official, had him x-rayed
several times. (Id. at 8.) Upon examining the x-rays, Fogam allegedly told
Ross that there was nothing wrong with him other than mild arthritis and
advised him that he should be able to "get out of [his] wheelchair and
walk." (Id. at 8.) Ross, however, insists that he "is unable to stand under
his own power." (Id.) Any attempt to use the toilet or bath, or get into

bed, causes him "unbearable and excruciating pain." (Id.) While he freely
admits that Fogam has permitted the use of certain pain killers, he insists
that he needs a surgical procedure based upon the earlier opinions of
other doctors and specialists. (Id. at 9, 10-11.)
Based upon his allegations, Ross contends that Dr. Fogam violated
his rights under the Eighth Amendment by failing to provide him with
effective treatment, by delaying his access to necessary medical care, and
for refusing to provide a consultation with a specialist. (Doc. 17 at 15-24.)
He claims that the other defendants are liable for failing to provide proper
medical care, failing to intervene when Dr. Fogam refused care, and
instituting a policy under which such constitutional deprivations could
occur.

(Id. at 15-26.) He asks that he be afforded compensatory and

punitive damages, fees and costs, and any equitable relief necessary to
ensure that he receives adequate medical care in the future. (Id. at 16-17.)
In its prior order, the Court laid out the constitutional standard for
an Eighth Amendment claim under § 1983, instructing Ross that he must
show that the defendants acted with deliberate indifference, not mere
negligence, in attending to his medical needs. (Doc. 14 at 3-4); see Estelle

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v. Gamble, 429 U.S. 97, 104 (1976). "To prevail on a deliberate
indifference to serious medical need claim, [a plaintiff] must show: (1) a
serious medical need; (2) the defendants' deliberate indifference to that
need; and (3) causation between that indifference and the plaintiffs
injury." Mann v. Taser intern., Inc., 588 F.3d 1291, 1306-07 (11th Cir.
2009). "Deliberate indifference" requires the plaintiff to show: "(1)
subjective knowledge of al,risk of serious harm; (2) disregard of that risk;
and (3) by conduct that is more than mere negligence."

Brown v.

Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004); Farmer v. Brennan, 511
U.S. 825, 837 (1994) (explaining that the plaintiff must show that the
defendant was "both [1 aware of facts from which the inference could be
drawn that a substantial risk of serious harm exist[ed], and he must also
[have] draw[n] the inference"). "A defendant, however, may escape
liability if he did not have subjective knowledge of the risk to begin with.
This subjective knowledge must be specific, as we have held that 'imputed
or collective knowledge cannot serve as the basis for a claim of deliberate
indifference.' Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008).
This question of '[w]hethér a prison official had the requisite knowledge

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of a substantial risk is a :question of fact,' and such knowledge may be
inferred based on the obviousness of the risk. Farmer, 511 U.S. at 842,

844-45." Bugge v. Roberts, 430 F. App'x 753, 758 (11th Cir. 2011).
In its initial order, the Court noted that Ross had failed to allege
facts showing that Fogam acted with deliberate indifference.' That is,
reading Ross's complaint in the light most favorable to him, it appeared
that "Dr. Fogam simply did not credit Ross's complaints and either
accurately diagnosed him as suffering only from mild arthritis or
misdiagnosed him. 112 (Doc. 14 at 5-6.)

If the diagnosis was accurate,

Fogam is blameless. If he misdiagnosed Ross, the claim sounds in
negligence (medical malpractice), which is not actionable under § 1983.

Estelle, 429 U.S. at 106 ("Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner."); Harris

The Court accepts that Ross has a serious medical need. See Farrow v. West,
320 F.3d 1235, 1243 (11th Cir. 2003) (in order to establish a serious medical need, an
inmate must show a medical need "diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would easily recognize the necessity for
a doctor's attention." (citations omitted).)
'

2

Ross is well aware of the deliberate indifference requirement. He stated such a
claim in an earlier case where a medical director denied a surgical pain implant as too
expensive. Ross v. Burnside, No. CV506-177, doc. 7 (M.D. Ga. June 12, 2006). That
case settled. Id., doc. 106.

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v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). While he hinted in his
complaint that Fogam misdiagnosed him to save prison resources, he
never explicitly alleged as much. Hence, the Court gave him a chance to
amend in order to address the deficiency. (Doc. 14 at 6.)
In his amended complaint, Ross equivocates somewhat. Initially, he
alleges that Dr. Fogam knew that Ross needed treatment but denied
specialist care because he 'lust wanted to show how powerful he is and
didn't care that [Ross] was suffering excruciating pain." (Doc. 17 at 10.)
Later, Ross backtracks a bit, stating that the denial of treatment might
have been based on cost, security, or 'lust to show and prove that he is the
'Boss'." (Id. at 12.) Regardless of this inconsistency, the Court is satisfied
that Ross has, if barely, alleged facts showing that Fogam was aware that
there were better treatment options available for his chronic pain but
denied access to those treatments for reasons other than sound medical
judgment.

Chance v. Armstrong, 143 F.3d 698, 703-4 (2d Cir. 1998).

The Court applies the led. R. Civ. P. 12(b)(6) standards here. Leal v. Ga. Dep't
of Corrs., 254 F.3d 1276, 1278-79 (11th Cir. 2001). Allegations in the complaint are
thus viewed as true and construed in the light most favorable to the plaintiff. Bumpus
v. Watts, 448 F. App'x 3, 4 n.1 (11th Cir. 2011). But conclusory allegations fail.
Ashcroft v. Iqbal, 556 U.S. 676, 681-82 (2009) (discussing a 12(b)(6) dismissal). "[T]he
pleading standard [Fed. R. Civ. P.] 8 announces does not require 'detailed factual
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Hence, Ross's claims against Fogam survive screening and require service
of the complaint on this defendant.
Ross's claims against Warden Koon, Warden Humes, and
Administrator Milton (deliberate indifference and failure to intervene)
fail, however. Claims brought pursuant to § 1983 cannot be based upon

theories of vicarious liability or respondeat superior. Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009); Polk County v. Dodson, 454 U.S. 312, 325 (1981);

Monell v. Dept of Soc. Serts., 436 U.S. 658, 691 (1978); Hartley v. Parnell,
193 F.3d 1263, 1269 (11th Cir. 1999). Rather, a plaintiff must
demonstrate either that these supervisory defendants directly
participated in the alleged constitutional deprivations or that there is
some other causal connection between the acts or omissions and the
alleged constitutional deprivations. Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003); Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990);

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1998) (per curiam). Such a
connection may arise "when a history of widespread abuse puts the
allegations,' but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation." Id., 129 S. Ct. at 1949 (citations omitted); see also Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (pro se pleadings are still construed liberally
after Iqbal).

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responsible supervisor on notice of the need to correct the alleged
deprivation, and he fails to do so, or when a supervisor's custom or policy
result[s] in deliberate indifference to constitutional rights or when facts
support an inference that the supervisor directed the subordinates to act
unlawfully or knew that the subordinates would act unlawfully and failed
to stop them from doing so." Cottone, 362 F.3d at 1360 (quotations and
citations omitted); Waynev. Jarvis, 197 F.3d 1098, 1105 (11th Cir. 1999),
overruled on other grounds by Manders v. Lee, 338 F.3d 1304, 1328 n.52
(11th Cir. 2003). Isolated incidents are generally insufficient to establish
a supervisor's liability; indeed, the deprivations must be "obvious,
flagrant, rampant and of continued duration.

.. ."

Gray ex rel. Alexander

v. Bostic, 458 F.3d 1295, 1808 (11th Cir. 2006) (quoting Hartley v. Parnell,
193 F.3d 1263 ) 1269 (11th Cir. 1999)). Ross has not offered any facts
showing direct action or some other causal connection as to these
defendants.

' While he states that they have instituted an "unconstitutional policy," he has
not offered any facts showing widespread abuse by the medical department or any
facts showing that the supervisors directed the medical staff to act unlawfully, or knew
that they were doing so but failed to stop them. See Harper v. Lawrence Cty, Al., 592
F.3d 1227, 1236 (11th Cir. 2010) (quoting Cottone, 326 F.3d at 1360).
ri

While Ross filed grievances and submitted letters to the defendants
(and even spoke to one of them) (doe. 17 at 12-13), their awareness of the
alleged deprivations standing alone is insufficient to state a claim against
them. Filing grievances with, or sending complaining letters to, a
supervisory official does not alone make the supervisor liable for the
allegedly violative conduct, even if the grievance or complaint is denied.

See Wayne, 197 F.3d at 1106; Tittle v. Jefferson County Comm'n, 10 F.3d
1535, 1541-42 (11th Cir. 1994) (Kravitch, J., concurring) (plaintiff must
show that the supervisor's knowledge amounted to deliberate indifference
to the asserted harm or risk, in that his knowledge was "so pervasive that
the refusal to prevent harm rises to the level of a custom or policy of
depriving inmates of their constitutional rights."); Weaver v. Toombs, 756
F. Supp. 335, 337 (W.D. Mich. 1989), affd, 915 F.2d 1574 (6th Cir. 1990);

see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) After all,
prison administrators receive mountains of letters and grievances on a
regular basis complaining about everything under the sun. When the
complaining person has actually been seen and treated by a medical
professional, the administrators are entitled to rely upon the medical

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professional's assessment4 Thus, the fact that Ross filed grievances and
sent letters does not establish the type of direct participation or causal
connection required here. Instead, he must allege sufficient facts
demonstrating that the defendants somehow caused or ratified the
deprivations, not that they were simply aware of his complaints. He has
not done so. Accordingly, his claims against Koon, Humes, and Milton
fail.
For the reasons explained above, the Clerk is DIRECTED to
forward a copy of this Order and Ross's amended complaint (doc. 17) to
the Marshal for service upon Dr. Eric Fogam. The other defendants,
however, should be DISMISSED. As an additional matter, Ross has filed
several motions, including motions to compel (essentially seeking a
preliminary injunction), for imposition of sanctions, for a writ of
mandamus against defendants (again seeking a preliminary injunction),
and for a default judgment. (Docs. 19, 20, 21, and 22.) As Fogam has yet
to be served, those motions are DENIED as premature. Ross's second
motion to appoint counsel (doc. 23) is also DENIED for the same reasons
explained in the initial order denying appointment of counsel. (Doc. 9.)

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SO REPORTED AND RECOMMENDED this

day of

November, 2012.
JUDGE
SOUT}ERN DISTRICT OF GEORGIA

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