Hopes v. Correct Health et al

Filing 16

ORDER denying 3 Motion to Appoint Counsel; denying 4 Motion for access to the law library; denying 5 Motion to preserve evidence; denying 7 Motion for Preliminary Injunction; denying 9 Motion for service of the complaint on defendants; denying 13 Motion to toll the clock. Signed by Magistrate Judge G. R. Smith on 6/28/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MANVEL OMAR HOPES,
Plaintiff,
v.
CORRECT HEALTH,
SHERIFF JOHN WILCHER, et al.,
Defendants.

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CV417-079

REPORT AND RECOMMENDATION

Pro se plaintiff Manvel Omar Hopes brings this 42 U.S.C. § 1983
action over the medical care that he has received after a slip-and-fall
accident at Chatham County Jail. See doc. 1 at 5-7. The Court granted
him leave to proceed in forma pauperis (IFP), doc. 6, and he returned the
necessary forms, docs. 11 & 12. The Court thus proceeds to screen his
Complaint. See 28 U.S.C. 1915A.
Hopes’ allegations are straightforward. He fell in the showers at
Chatham County Jail, after a cleaning product left the floor slippery.
Doc. 1 at 5. The fall injured his back. Id. He was taken to the infirmary,
examined, and returned to his cell with Ibuprofen. Id. Several days
later, he was examined by a physician, defendant “Dr. Smith.” Id. at 5-6.

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Dr. Smith declined to order an MRI or refer Hopes to an outside
neurologist. Id. at 6. Hopes objects that he was not prescribed sufficient
pain medication and that his injury left him incapacitated -- “unable to
leave bed for [his] most basic needs . . . .” Id. at 5-6. He sues Sheriff
Wilcher, Correct Health, Dr. Smith, and other jail employees he alleges
were responsible for the “unsafe environment that caused the initial
injury,” and the allegedly inadequate treatment.

Id. at 7.

He seeks

compensatory and punitive damages and injunctive relief. Id. at 8.
Hopes’ slip-and-fall allegation fails to state a claim upon which
relief can be granted. Section 1983 simply cannot be used to bring a
negligence-based tort suit in federal court,1 and even read most
charitably, his allegation that some jail employee carelessly used the
wrong cleaning product on the shower floor sounds in negligence rather
than the “criminal recklessness” required to support a § 1983 claim.
Farmer v. Brennan, 511 U.S. 825, 836-40 (1994). To assert a § 1983
claim, Hopes must allege not only that he was exposed to “a substantial
risk of serious harm” but also that the responsible prison officials acted
with “deliberate indifference” to that known risk. Id. at 834. Farmer

1

See generally Daniels v. Williams, 474 U.S. 327 (1986) (prison official’s negligence
in failing to protect inmate from harm does not give rise to a cause of action under §
1983).
2

defined deliberate indifference in terms of the subjective recklessness
used in the criminal law: “a prison official cannot be found liable under
the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk
to inmate health or safety; the official 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.”

Id. at 837.

Negligence, which arises when a person fails to live up to an objective,
reasonable-man standard of conduct, falls far short of this subjective
standard. See Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007)
(explaining that subjective component of deliberate indifference requires
more than even gross negligence).
Here, none of Hopes’ allegations suggest that the cleaning product
was even negligently applied, for he simply asserts that the cleaning
product made the floor slippery, not that any prison official, exercising
due care, should have known that the product posed such a risk. See
LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (“slippery prison
floors . . . do not state even an arguable claim for cruel and unusual
punishment” (internal quotes and cite omitted)). More to the point, his
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allegations fall far short of asserting the level of culpability required by
the Eighth Amendment -- actual, subjective awareness of a substantial
risk to inmate health or safety.

Farmer, 511 U.S. at 840 (“Eighth

Amendment liability requires consciousness of a risk”); id. at 841
(“deliberate indifference serves under the Eighth Amendment to ensure
only that inflictions of punishment carry liability”); id. at 842 (“a prison
official who was unaware of a substantial risk of harm to an inmate may .
. . [not] be held liable under the Eighth Amendment [even] if the risk
was obvious and a reasonable prison official would have noticed it”).
That leaves Hopes’ inadequate-medical-care claim. Prison officials’
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) (citing Estelle v. Gamble,
429 U.S. 972, 1004 (1976)); see Farmer, 511 U.S. at 832-33 (although
prison conditions may be restrictive and harsh, prison officials must
provide, inter alia, necessary medical care).

A prisoner’s mere

disagreement with the type of medical treatment he receives, however, is
insufficient. See, e.g., Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th
Cir. 1985) (“Although [plaintiff/inmate] may have desired different
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modes of treatment, the care the jail provided did not amount to
deliberate indifference.”); see also Estelle, 429 U.S. at 107 (“the question
whether an X-ray or additional diagnostic techniques or forms of
treatment is indicated is a classic example of a matter for medical
judgment. A medical decision not to order an X-ray, or like measures,
does not represent cruel and unusual punishment.”).

Even if the

treatment an inmate receives was negligent, that’s not enough to support
a § 1983 claim. See, e.g. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th
Cir. 1991) (citing Estelle, 429 U.S. at 106) (“Mere incidents of [medical]
negligence or malpractice do not rise to the level of constitutional
violations.”).
Hopes acknowledges that he received care and treatment after his
fall. Doc. 1 at 5 (stating, after he fell, “medical staff were immediately
alerted[, he] was placed on a back board for spinal stabilization then
moved to medical department on a stretcher for examination,” given pain
medication, examined by Dr. Smith two days later, “moved to the
housing unit in the infirmary,” and “kept in the infirmary for about two
weeks,” albeit allegedly “without treatment”). His mere disagreement
with that course of treatment and allegation that it was inadequate,
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without more, does not state a claim of deliberate indifference. See, e.g.,
Hamm, 774 F.2d at 1575; Holtzclaw v. Morales, 2016 WL 4925786 at * 2
(S.D. Ga. Sept. 14, 2016) His medical-treatment claim, therefore, also
fails.
Although pro se plaintiffs are often entitled to an opportunity to
amend their complaints, see, e.g., Johnson v. Boyd, 568 F. App’x 719, 724
(11th Cir. 2014), Johnson’s inadequate-medical-care claim does not
appear amendable.2 See Jenkins v. Walker, 620 F. App’x 709, 711 (11th
Cir. 2015) (“[A] district court need not allow amendment if the amended
complaint would still be subject to dismissal.”). His Complaint should
therefore be DISMISSED WITH PREJUDICE.
Since the Court recommends that all of Hopes’ claims be dismissed,
his remaining motions -- to appoint counsel (doc. 3), for access to the law
library (doc. 4), to preserve evidence (doc. 5), for a preliminary injunction
(doc. 7), for service of the Complaint on defendants (doc. 9), and to “toll

2

Despite the lack of any apparent basis for viable amendment, Hopes’ opportunity to
object to this Report and Recommendation within 14 days of service affords him an
opportunity to resuscitate his case. He may submit an Amended Complaint during
that period, if he believes that it would cure the legal and factual defects discussed
above. See Willis v. Darden, 2012 WL 170163 at * 2 n. 3 (S.D. Ga. Jan. 19, 2012)
(citing Smith v. Stanley, 2011 WL 1114503 at * 1 (W.D. Mich. Jan. 19, 2011)).
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the clock,” (doc. 13), which the Court construes as a motion to stay this
case -- are all DENIED as moot.
Meanwhile, Hopes must pay his $350 filing fee.

His furnished

account information shows that he has had a $51.03 average monthly
balance and $230.83 average monthly deposits in his prison account
during the six months prior to filing his Complaint. Doc. 10 at 1. He
therefore owes a $46.17 initial 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). His custodian (or designee) shall set aside
20 percent of all future deposits from his account and forward same 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.
The

Clerk

is

DIRECTED

to

send

this

Report

and

Recommendation (R&R) to Johnson’s account custodian immediately. In
the event he is transferred to another institution, his present custodian
shall forward a copy of this R&R and all financial information concerning
payment of the filing fee and costs in this case to his new custodian. The
balance due from Johnson shall be collected by the custodian at his next
institution in accordance with the terms of this R&R.
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This R&R is submitted to the district judge assigned to this action,
pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3.
Within 14 days of service, any party may file written objections to this
R&R with the Court and serve a copy on all parties. The document
should be captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district

judge

will

review

the

magistrate

judge’s

findings

and

recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App’x
542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this 28th day of June,
2017.

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