Jackson v. Franks et al

Filing 7

ORDERED that the Court grant Plaintiff 30 days to amend re 1 Complaint filed by Kenneth L. Jackson. The Clerk is directed to send this Order to plaintiff's account custodian. Signed by Magistrate Judge G. R. Smith on 12/19/12. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
KENNETH L. JACKSON,

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Plaintiff,

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V.

Case No. CV412-291

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DOUGLAS D. FRANKS;
MS. PHILLIPS; DR. JOHN DOE,

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Defendants.

ORDER
Proceeding pro Se, Kenneth L. Jackson brings this 42 U.S.C. § 1983
action against three Liberty County Jail employees. He alleges that
when he was detained at the jail he furnished his medical records
showing that he required prescribed medication but did not receive the
drug for nearly a month. This subjected him to an elevated risk of
blindness. 1 Doc. 1 at . He sues nurse Phillips "because it's her

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Since he has completed his ii forma pauperis paperwork, does. 4 & 5, the Court will
now screen his case under 28 U.S.C. § 1915(e)(2)(B)(ii), which allows a district court
to sua sponte dismiss a claim of a plaintiff proceeding in forma pauperis for failure to
state a claim before service of process. See also 28 U.S.C. § 1915A (courts must
identify "cognizable claims" filed by prisoners or other detainees and dismiss claims

responsibility to order my medication. [He sues t]he Administrator
[defendant Douglas D. Franks] because he is the one who signs and gives
consent to order my medication." The jail, he seems to allege, requires
prisoners like him to first see a specialist before providing such
medication. But "giv[en], the time it take[s] I could go blind.' The jail
only has a doctor come once a month with unknown date to inmates." Id.
at 5 (footnote added). He alleges deliberate indifference and seeks money
damages. Id. at 5-6. Finally, although he names "Dr. John Doe" as a
defendant in the caption of the complaint, he supplies no allegations
against him in the body.

which are frivolous, malicious fail to state a claim for relief, or seek monetary relief
from a defendant immune frbm such relief, and 42 U.S.C. § 1997e(c)(2) (allowing
dismissal on the same four standards provided by § 1915A as to any prisoner suit
brought "with respect to prison conditions").
The Court applies the Fed. 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 coflstrued in the light most favorable to the plaintiff.
Bumpus v. Watts, 448 F. App'bc3, 4 n. 1 (11th Cir. 2011). But conclusory allegations
fail. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (discussing a 12(b)(6) dismissal).
"[T]he pleading standard [Fed. R. Civ. P.] 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation." Id. (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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How or why Jackson does not say.
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GOVERNING STANDARDS
A jail staffs deliberate indifference "to an inmate's serious medical
needs violates the inmate's right to be free from cruel and unusual
punishment.' Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989).
And a prisoner whose Eighth Amendment rights are violated may sue
the prison staff members who violated those rights under 42 U.S.C. §
1983." Fields v. Corizon Health, Inc., 2012 WL 3854592 at * 7 (11th cir.
Sep. 6, 2012) (footnote aIded). The Eighth Amendment also protects
against deliberate indifference "to conditions posing an unreasonable
risk of serious damage to Future health." Roe v. Elyea, 631 F.3d 843, 858
(7th Cir. 2011) (quotes and cite omitted); see also Giddens v. Calhoun
State Prison, 277 Fed. App'x 847, 847 (11th Cir. 2007); Cassady v.

Owens, 2011 WL 1102781 at * 2 (S.D. Ga. Mar. 22, 2011), aff'd, 447 F.
App'x 28 (11th Cir. 2011)

Whether a plaintiff likel Jackson is a pretrial detainee (in which case the
Fourteenth Amendment's DUe Process Clause applies) or a convicted prisoner
(Eighth Amendment applies);, the standard is the same: deliberate indifference.
Craig v. Floyd Cnty., 643 F.d 1306, 1310 (11th Cir. 2011). Hence, jurisprudence
from both Amendments applies here.
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To state a claim, however, an inmate must plead facts showing that
he had an objectively serious medical need' and that the defendants'
"response to that need was poor enough to constitute an unnecessary
and wanton infliction of pain," Bingham v. Thomas, 654 F.3d 1171, 1176
(11th Cir. 2011), or risk of serious damage to future health.

Roe, 631

F.3d at 858. A medical-treatment (serious medication or medicalprocedure need) delay of even hours may be deliberately indifferent given
the "reason for the delay and the nature of the medical need." McElligott
v. Foley, 182 F.3d 1248, 155 (11th Cir. 1999); see also Taylor v. Adams,

" A "serious medical need is ionsidered one that has been 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 dbctor's attention." Farrow V. West, 320 F.3d 1235, 1243
(11th Cir. 2003) (quotes and bite omitted); Hutchinson v. N.Y State Corr. Officers,
2003 WL 22056997 at * 5 (SJI.N.Y. Sept. 4, 2003) (a "condition of urgency, one that
might produce death, degeneration or extreme pain."). Only "those deprivations
denying the 'minimal civilize measure of life's necessities' are sufficiently grave to
from the basis of an Eighth Aiendment violation." Hudson v. McMillian, 503 U.S. 1,
9 (1992). Mere "ma1practice" allegations do not suffice. Gonzalez v. Sarreck, 2011
WL 5051341 at * 18 (S.D.N.YJ Oct. 24, 2011) ("allegations that eye surgery rendered
[plaintiff] without sight in his right eye is, without more, a malpractice claim and
does not implicate the Constitution. It is well settled that "disagreements over
medications, diagnostic techniques, forms of treatment, or the need for specialists or
the timing of their intervention" are insufficient under § 1983 . . . . Unsuccessful
medical treatment alone does pot give rise to § 1983 liability.").
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221 F.3d 1254, 1258 (11th Cir. 2000); Rykard v. City of Dothan, 2011 WL
6813001 at * 3 (M.D. Ala. Dec. 28, 2011).
Plaintiff also must plead causation -- that the policy or actions
amounting to deliberate',indifference proximately caused an injury or
posed a serious risk.

Goebert v. Lee County, 510 F.3d 1312, 1326 (11th

Cir. 2007); compare Fields, 2012 WL 3854592 at * 8 (affirming § 1983based judgment for inmate who sued medical services provider, as well as
a doctor and nurse emp'oyed by provider, for their alleged deliberate
indifference to his medical emergency that resulted in his partial
paralysis), with Craig, 643 F.3d at 1311 (pre-trial detainee failed to show
that nine-day delay by jail medical personnel in providing him with
appropriate surgical treatment for multiple fractures to his skull was the
result of any unconstitutional custom or policy of allegedly not referring
detainees to physicians, of relying on hospital clearance forms instead of
performing their own diignostic tests on detainees transported to jail
from hospital, or of using the least costly means to treat detainees). He
thus must plead facts den onstrating that (a) a serious medical need or
risk was in play; and (b) necessary medical treatment was delayed for

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non-medical reasons, or that defendants "knowingly interfere[d] with a
physician's prescribed course of treatment." Bingham, 654 F.3d at 1176.
II. ANALYSIS
The Court's ana1ysi is hampered by Jackson's failure to state what
his condition is. In Harris v. Ghosh, 2012 WL 3903894 (N.D. Iii. Sep. 7,
2012), an inmate sued pirison officials under § 1983, alleging deliberate
indifference to his serious medical needs resulting from diabetes. Id. at *
1. The risk of inadequate treatment, he alleged, included blindness. Id.
The court there recognized the claim but on summary judgement ruled
that he failed to plead causation against his named medical-care
defendants. And the record showed that he received adequate treatment
in any event.

Id. at * 6-7. The court impliedly concluded, however, that

Causation must be undergirded by a showing of knowing, direct involvement. See,
e.g., McCreary v. Parker, 456 F. App'x 790, 793 (11th Cir. 2012) (no qualified
immunity where plaintiff a1eged sheriff was deliberately indifferent to known
dangers resulting from overcrowding policy in jail); Marsh v. Butler County, Ala., 268
F.3d 1014, 1029-30 (11th Cir. 2001) (substantial evidence that the sheriff knew that
the conditions of the jail, which were overcrowded and unsupervised, were deficient).
It is not enough to name someone as a defendant and claim that they "should have
known" to do or not do somettiing -- that's a negligence standard and does not rise to
the deliberate indifference standard that drives Eighth Amendment jurisprudence.
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the deliberately indifferent withholding of diabetes medication could
support a § 1983 medical heeds claim.' Id.
Here the Court does not even have a basic building block of a claim
before it. However, Jackson may be able to plead sufficient facts if given

a second chance. Cf. Laiglois v. Traveler's Ins. Co., 401 F. App'x 425,
426-27 (11th Cir. 2010) (even though IFP's litigant's pro se complaint
failed to state basis for federal jurisdiction and failed to state a claim, and
she failed to seek leave to amend her complaint, nevertheless she should
have been afforded an opportunity to amend deficiencies prior to
dismissal, where no undue time had elapsed, no undue prejudice could be
shown, and the record revealed some potential claim-resuscitation).
See also Henderson v. FelMer, 2010 WL 4823690 at *2 (E.D. Cal. Nov. 22, 2010)
(insulin dependent diabetic inmate with blindness and other risks sued prison
officials; "defendants, under their medical screening policy, limited plaintiff to yard
exercise only five times per month, refused special diets for diabetics, and refused
emergency snacks to counter insulin reactions during overnight confinement in the
locked cell. Plaintiff also alleges that these defendants, without any medical exam or
review of his medical records, discontinued plaintiffs pain and blood pressure
medications. If true, these fats are adequate to show acts or omissions sufficiently
harmful to evidence deliberite indifference to serious medical needs.") (quotes
omitted); Griffin v. Kern Medical Center, 2011 WL 4344133 at * 4 (E.D. Cal. Sep. 14,
2011) (inmate who suffered a severe cut above his eye stated a § 1983 claim against a
prison health provider who allowed staff to rush treatment, preventing provider from
prescribing antibiotics or even bandage sutures over the eye injury; the severity of the
cut suggested that the risk of infection was obvious; an infection developed as a result
and led to plaintiffs blindness); Gordon v. Schlofman, 2011 WL 2681817 at * 7
(M.D.Fla. July 11, 2011) ("there appears to be no dispute Plaintiffs glaucoma
constitutes a serious medical reed.").
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The Court therefore willgrant him 30 days to place within his prison's
mail system an Amended Complaint addressing the above deficiencies.
Otherwise it will recommend that his case be dismissed.

III. PLRA PAYMENT
Meanwhile, it is time for Jackson to pay his filing fee. His
furnished account information shows that he has had funds in his prison
account during the past six months. Doe. 5 ($41.77 average monthly
balance for the last six months). He therefore owes an initial partial
filing fee of $8.35. See 28 U.S.C. § 1915(b) (1) (requiring an initial fee
assessment "when funds exist," under a specific 20 percent formula).
Plaintiff's custodian (or designee) therefore shall deduct $8.35 from
Jackson's account and remit to the Clerk of Court (payable to the "Clerk
of Court"). The custodian shall also set aside 20 percent of all future
deposits to the account, then forward those funds to the Clerk each time
the set aside amount reaches $10.00, until the balance of the Court's
$350.00 filing fee has been paid in full.
Also, the Clerk is DIRECTED to send this Order to plaintiffs
account custodian immediately, as this payment directive is
nondispositive within the meaning of Fed. R. Civ. P. 72(a), so no Rule

72(b) adoption is required. In the event plaintiff is transferred to another
institution, his present custodian shall forward a copy of this Order and
all financial information concerning payment of the filing fee and costs in
this case to plaintiffs new custodian. The balance due from the plaintiff
shall be collected by the custodian at his next institution in accordance
with the terms of this Ordr.
SO ORDERED, this day of December, 2012.

UJATEGIFRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA