Jones v. Fogam

Filing 10

ORDER directing service by the U.S Marshal. The Clerk is directed to serve a copy of this Order to Jones' custodian. Signed by Magistrate Judge G. R. Smith on 8/28/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LESTER BERNARD JONES ,

)
)

Plaintiff,

v.

Case No. CV413-131

DR. ERIC FOGAM, Medical
Director,

Defendant.

ORDER
Lester Bernard Jones, a Coastal State Prison inmate, has filed an
amended 42 U.S.C. § 1983 complaint against his prison doctor, Eric
Fogam, M.D. 1 Doc. 9. In it he says (in raw, unedited form):

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Since he has completed his IFP paperwork, docs. 6 & 7, 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 which are
frivolous, malicious, fail to state a claim for relief, or seek monetary relief from a
defendant immune from 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 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. 662, 678 (2009) (discussing a 12(b)(6) dismissal). “[T]he

My leg was amputated after I was in a very serious car accident
around November, 2007, when I had poor blood circulation, because
I suffer with diabetic.
Before I was arrested, I was fitted for a prosthetic leg, but after I was
arrested and placed in County jail, they changed all my medication
for mental illness and it cause me to gain a very large amount of
weight and I was no longer able to ware the prosthetic I had, but the
jail started the process to have me fitted for another leg, but I was
transferred to Jackson State Prison, March, 2012. And that when I
met with Dr. Fogam and he promise me that he was going to help me
with all my medical problem and get me another prosthetic leg, but
after I had been here for about 90 days, Dr. Fogam call me in and
told me that my leg was amputed on the street, he was not going to
help me get another and he don’t care what type of medical problem
I was having being in this wheelchair, he was not going to make the
state pay for me to get another prosthetic because it’s not their
problem, and now I’m getting pressure soar on my bottom and I’m
suffering with diabetic and they are very painful.

Id. at 5.
He wants a “preliminary injunction,” presumably an order directing
the prison to furnish him with a new prosthetic leg.

Id. at 6. And, he

seeks $25,000 “for pain and suffering and deliberate indifference.” Id. In
“aftermath” pages he weaves in some more facts but mostly legal
conclusions (that Fogam violated his Eight Amendment rights).

Id. at

pleading standard [Fed. R. Civ. P.] 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-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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7-37. He includes his prison grievance paperwork wherein the warden
concluded, on February 5, 2013: “Per upper level provider Inmate is
receiving appropriate care: with no need for prosthetics.”

Id. at 36.

I. ANALYSIS
Jones must show more than “malpractice” level medical treatment
here:
Prison officials violate the Constitution when they act with
deliberate indifference to an inmate's serious medical needs, giving
rise to a cause of action under § 1983. Estelle v. Gamble , 429 U.S. 97,
104–05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). To prevail on a
claim of deliberate indifference, a plaintiff must show (1) a serious
medical need; (2) deliberate indifference to that need on the part of
the defendant; and (3) causation between the defendant's
indifference and the plaintiff's injury. Mann v. Taser Int'l, Inc ., 588
F.3d 1291, 1306–07 (11th Cir.2009). A serious medical need is “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 doctor's attention.” Id . at 1307 (quotation
omitted). Alternatively, a plaintiff can establish a serious medical
need by showing that a delay in treatment worsened his condition.
Id .

Baez v. Rogers , 2013 WL 3306082 at * 2 (11th Cir. July 2, 2013).
A mere difference of opinion regarding the preferred course of
medical treatment does not constitute an Eighth Amendment violation.

Gillen v. D'Amico , 237 F. App’x. 173, 174 (9th Cir. 2007) (difference of
opinion between state inmate, whose leg had been amputated, and his

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treating physicians as to whether he needed a new prosthetic leg and the
preferred course of treatment did not constitute deliberate indifference to
inmate's serious medical need in violation of the Eighth Amendment).
Jones says Fogam deliberately disregarded his serious medical need,
doc. 9 at 20-22, because he is not furnishing him with a prosthetic leg on
economic grounds. The state prison system, Fogam is alleged to have
declared, doesn’t want to pay for his prosthetic leg. So even though
Fogam concedes Jones needs one, he is refusing to furnish it on economic
grounds. (Jones is silent about whether Fogam is authorized to make the
state expend its funds for that purpose.)

Id. at 27, 29. Jones also alleges

that he
is being subjected to invidious discrimination and denied access to
specialized and necessary medical procedures and treatment, based
upon his being a[n] African American, and denied the same level of
[medical care] afforded to those similarly situated “white” inmates
with serious medical needs requiring specialized medical procedures
and treatment.

Id. at 29 ¶ 19; see also id. at 27-28 (alleging that “similarly situated” white
inmates receive specialized procedures and treatment denied to him); id.
at 31 ¶ 23 (alleging “invidious discrimination” in Fogam’s provision of
medical care); id. at 32 ¶ 24 (Fogam is liable for “racially motivated
deliberate indifference to plaintiff’s serious medical needs, the intentional
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infliction of emotional distress, the intentional infliction of cruel and
unusual punishment, in violation of Plaintiff’s U.S. Constitution Eighth
and Fourteenth Amendment Rights . . . .”); id. at 32-23 ¶ 25 (suing Fogam
in his “Individual and Official Capacities as State Officials [sic] . . . .”). 2
Nothing is preventing Jones from controlling his diet and getting
out of his wheelchair with crutches, exercising, and otherwise mitigating
the adverse conditions (overweight, diabetic, hemorrhoids, body sores,
etc., id. at 24-26) that arise from overeating and under-activity. To the
extent he claims Fogam has been negligent, his claim fails.

Stewart v.

Bright , 2013 WL 1896198 at * 3 (E.D. Cal. May 6, 2013) (“Plaintiff's claim
that Defendant Fox failed to locate a prosthetic leg is, at most, a claim of
negligence that is not cognizable under 42 U.S.C. § 1983.”).
But Jones presents more than that, though the question whether he
places it over the line into an actionable claim is reasonably close. Some
courts have assumed that the need for a prosthetic leg constitutes a
serious medical need but found no Gamble violation in jailers’
provisioning process. See Sisson v. Davis , 2012 WL 368223 at * 3 (E.D.
Va. Feb. 2, 2012) (“The record establishes that Nurse Badgett diligently
2

The Eleventh Amendment bars his money damages claim against Fogam in his
official capacity. Gamble v. Florida Dept. of Health and Rehab. Servs ., 779 F.2d 1509,
1511 (11th Cir. 1986); Baxter v. Adam , 750 F.Supp.2d 1313, 1339-40 (N.D. Fla. 2010).
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sought to procure a shoe for plaintiff's prosthetic leg.”), aff’d , 475 F. App’x
910 (4th Cir. 2012); Baxter , 750 F.Supp.2d at 1336; Powell v. United

States , 2009 WL 2590057 at * 4 (E.D. Ky. Aug. 19, 2009) (no Gamble claim
where prison doctor cited “a myriad of reasons for this decision, including
this prisoner's pre-incarceration records, plaintiff's prior lack of success
with prosthetics and success with the wheelchair, his failure to self-care
such that ulcers developed on his skin, plaintiff's successful use of the
wheelchair at the prison over the years at FMC–Lexington, and his
sudden interest in having the prosthetics again, as his release date got
closer. Even then, however, he displayed no willingness to adhere to a
weight loss plan and other regimens which the artificial limbs would
require.”).
Others remind that “‘[w]here a prisoner has received some medical
attention and the dispute is over the adequacy of the treatment, federal
courts are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.’”

Stewart , 2011

WL 4559179 at * 12 (quoting Westlake v. Lucas , 537 F.2d 857, 860 n. 5
(6th Cir. 1976); but see id. , 2011 WL 4559179 at * 14 (“However, the court
concludes that a genuine issue of material fact exists with respect to

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plaintiff's Eighth Amendment claim that defendants failed to provide him
with crutches.”), adopted 2011 WL 4571871 at * 3 (W.D. Mich. Sep. 30,
2011); Baxter , 750 F. Supp. at 1335 (“liability cannot be avoided simply by
pointing out that some medical care was provided, however cursory or
insufficient that care.”).
Jones’ Gamble claim, then, cannot be said to be frivolous on its face,
and can use the benefit of an answer and further briefing.

See Newman

v. Alabama , 503 F.2d 1320, 1331-32 (5th Cir. 1974) (unavailability of
eyeglasses and prosthetic devices, inter alia, in state penal system
warranted findings of constitutional inadequacy under either the Eighth
Amendment or the Due Process Clause of the Fourteenth Amendment);

Thomas v. Penn. Dept. of Corr. , 615 F.Supp.2d 411, 424-25 (W.D. Pa.
2009) (holding that prisoner's preference for one type of prosthesis did not
render a different type of prosthesis an unreasonable accommodation so
long as prosthesis provided to prisoner allowed him to access prison
services).
To that end, some inmates’ medical needs can cost.

See, e.g. ,

Schaub v. VonWald , 638 F.2d 905, 916-17 (8th Cir. 2011) (director of
county adult detention center was subjectively aware of paraplegic

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prisoner's serious medical needs, as required to establish violation of
Eighth Amendment, even if director did not play direct role in prisoner's
care and treatment, where letter to director from prisoner's doctor, which
was also forwarded to director by sentencing judge, explained that
prisoner had pressure sores and that his condition required padded toilet
seat, handicapped-accessible shower with padded shower bench,
mechanism for elevating his legs in bed, and pressure-relieving mattress
on his bed).
Jones’ race-based, unequal treatment claim fits within case law
captured in M. B. Mushlin , RIGHTS OF P RISONERS 5.8 (4th ed. 2013), which
cites cases like Washington v. Grace , 445 F. App’x 611, 616-17 (3rd Cir.
2011) (black prisoner's allegations that his attempts to obtain medical
treatment were ignored or delayed, while white prisoners received prompt
treatment, stated claim for disparate treatment by prison officials) and

Champion v. Murphy , 643 F.Supp.2d 1171, 1177 (C.D. Cal. 2009) (prison
dentist did not discriminate against a black inmate on the basis of race, so
as to violated the inmate's equal protection rights, despite the inmate's
speculation that the dentist's allegedly improper dental care and alleged
“smirks” and “smugness” were the product of discriminatory intent),

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aff’d , 393 F. App’x 490 (9th Cir. 2010).
It is, however, subject to dismissal because he pleads only
conclusions and insufficient claim-supporting facts (i.e., he merely
generalizes that whites received a higher level of medical care than he, but
pleads no supporting examples). Deberry v. Davis , 460 F. App’x 796, 801
(10th Cir. 2012) (allegation that inmate was treated differently than
similarly situated prisoners was insufficient to withstand motion to
dismiss equal-protection claim); Johnson v. Paparozzi, 219 F.Supp.2d 635,
643-44 (D.N.J. 2002) (finding that inmate failed to state an
equal-protection claim where he alleged, without setting forth any
supporting facts, that he had been denied parole because he was not a
white inmate who was a friend or acquaintance of a member of the parole
board or other official); Jackson v. Hogan , 446 N.E.2d 692, 694 (Mass.
1983) (conclusory allegations of racism without support are not
actionable). Yet, Jones may have simply omitted supporting facts out of
simple ignorance of what the law demands, so a re-plead opportunity is
warranted here.

II. CONCLUSION
Accordingly, the Court green-lights Jones’ Gamble claim against

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defendant Fogam. The Court sua sponte grants Jones leave to file,
within 21 days after the date this Order is served, an amended complaint
should he be able to plead enough facts to support his racial
discrimination claim. See Langlois v. Traveler's Ins. Co ., 401 F. App'x
425, 426–27 (11th Cir. 2010). Otherwise, that claim will face dismissal.
The Clerk is DIRECTED to forward a copy of this Order, the complaint,
and the amended complaint to the Marshal so that he may serve
defendant Fogam.
Meanwhile, Jones must pay his filing fee. His furnished account
information shows that he has kept an average monthly deposit of $65.66
in his prison account during the past six months. Doc. 14. He therefore
owes at $13.13 partial filing fee. 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 remit to the
Clerk of Court (payable to the “Clerk of Court”) 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.

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Also, the Clerk is DIRECTED to send this Order to plaintiff's
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 plaintiff's 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 Order.

SO ORDERED this 28th day of August, 2013.

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGIA

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