King v. Henry et al

Filing 48

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Defendants' 27 MOTION to Dismiss. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 9/30/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. (csr)

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

ROGER KING,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-17

v.
ANGIELEA HENRY; PHYLLIS ALLEN; and
DR. GARDNER,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint. (Doc. 27.)
Defendants contend that Plaintiff’s Complaint, as amended, fails to state a claim against them for
deliberate indifference to Plaintiff’s serious medical needs. (Id. at pp. 5–9.) However, as
District Judge J. Randal Hall explained in his Order of February 3, 2016, “Plaintiff states a
plausible claim that he has requested medical treatment from Defendants Henry, Allen, and
Gardner, and those Defendants have disregarded those requests.” (Doc. 22, p. 3.) Defendants
also raise the shield of qualified immunity as to Plaintiff’s claims. (Doc. 27-1, pp. 9–10.)
However, Plaintiff’s right to be free from deliberate indifference to his medical needs has long
been clearly established. Consequently, I RECOMMEND that the Court DENY Defendants’
Motion to Dismiss.
BACKGROUND
Plaintiff’s Complaint centers on allegations that he has been denied adequate treatment
for Hepatitis C while incarcerated at Smith State Prison. (Doc. 1.) In my November 12, 2015,

Report and Recommendation, I conducted the requisite frivolity review pursuant to 28 U.S.C.
§ 1915A and recommended that Plaintiff’s Complaint be dismissed for failure to state a claim.
(Doc. 14.) I assessed whether Plaintiff stated a cognizable claim that Defendants acted with
deliberate indifference to Plaintiff’s medical needs in violation of the Eighth Amendment and
determined that Plaintiff established a serious medical need by alleging that he has been
diagnosed with Hepatitis C. (Id. at pp. 4–6.) However, I concluded that Plaintiff had not alleged
that Defendants Angielea Henry and Dr. Gardner actually knew of his condition or received his
requests for follow up treatment. Id. As to Defendants Phyllis Allen, Doug Williams, and
Stanley Williams, I concluded that there were no allegations supporting a finding that these
Defendants acted with deliberate indifference. (Id. at p. 6.)
I also recommended dismissal of Plaintiff’s claims that Defendants violated his due
process rights by denying his grievances. (Id. at pp. 6–7.) Additionally, I concluded that
Plaintiff could not state a claim against Defendants for monetary damages in their official
capacities due to Eleventh Amendment immunity and traditional principles of state sovereignty.
(Id. at p. 7.) Lastly, I recommended that the Court deny Plaintiff’s request for preliminary
injunctive relief. (Id. at p. 8–9.)
At Plaintiff’s request, the Court granted him an extension of time to object to the Report
and Recommendation. (Doc. 17.) He then filed Objections, (doc. 20), as well as a brief in
support of his Objections, (doc. 21). Herein, the Court refers to these documents collectively as
“Plaintiff’s Objections.” In his Objections, Plaintiff provided additional information in support
of his claims that Defendants were deliberately indifferent to his medical needs and that he will
suffer harm if his medical needs are not met. (Id.) He alleged that he has not received any

2

treatment for his Hepatitis C and that, if left untreated, his condition will cause liver damage and
potentially cancer. (Id. at p. 3.) Plaintiff further alleged that Defendants Henry, Allen, and
Gardner were notified of his condition but failed to provide treatment. (Id. at pp. 3–4.) For
example, Plaintiff stated that he submitted a medial requested to be treated for Hepatitis C on
July 6, 2011, that the medical department did not respond to that request, and that he submitted a
follow up request to Defendant Allen, the medical administrator. Id. He also stated that he
submitted a request for treatment for Hepatitis C on July 22, 2014, and that Dr. Alston 1 did not
address his request for Hepatitis C treatment despite responding to that request two days later.
Id. Plaintiff further referenced grievances that he began to file in September of 2014 regarding
medical personnel’s “non-response” to his requests that he be treated for Hepatitis C. Id.
Construing Plaintiff’s allegations in his Objections liberally and reading them in
conjunction with those made in the Complaint, Judge Hall found that “Plaintiff states a plausible
claim that he has requested medical treatment from Defendants Henry, Allen, and Gardner, and
those Defendants have disregarded those requests.

Accordingly, Plaintiff’s deliberate

indifference to serious medical needs claims will proceed against Defendants Henry, Allen, and
Gardner.” (Doc. 22, p. 3.) However, Judge Hall held that Plaintiff’s claims against Defendant
Stanley Williams, the former Warden of Smith State Prison, and Defendant Doug Williams, the
current Warden, rely solely upon those Defendants’ supervisory positions. Therefore, the Court
dismissed all claims against Defendants Stanley Williams and Doug Williams. (Id. at pp. 3–5.)

1

Plaintiff references Dr. Alston throughout his pleadings and identifies him as the former Medical
Director of Smith State Prison in his Response to the Motion to Dismiss. (Doc. 32, pp. 9–10.) However,
he has not named Dr. Alston as a Defendant in this lawsuit.

3

The Court also dismissed Plaintiff’s due process claims and his official capacity claims for
monetary damages and denied his request for a preliminary injunction. (Id. at pp. 5–6.)
After being served with Plaintiff’s Complaint, Defendants Henry, Allen, and Gardner
filed the instant Motion to Dismiss. (Doc. 27.) In response to that Motion, Plaintiff offers
further allegations in support of his deliberate indifference claims. (Doc. 32.) Plaintiff states
that he began requesting treatment for Hepatitis C on July 6, 2011. (Id. at p. 3.) However, as of
April 14, 2016, he had still not received any treatment. Id. He states that he had a biopsy on
April 11, 2014. (Id.at p. 4.) Following that biopsy, Plaintiff had an interview with Dr. Alston at
Smith State Prison, who informed Plaintiff that his treatment would begin in approximately two
weeks. Id. However, since that time, there has not been any treatment. Id. Plaintiff contends he
has repeatedly requested treatment, including on July 22, 2014, September 29, 2015, and
December 24, 2015. Id.
Plaintiff states that Defendant Henry is the Deputy Warden of care and treatment,
Defendant Allen is the medical administrator, and Defendant Gardner is the medical director at
the prison. (Id. at p. 6.) He states that none of these Defendants have provided any explanation
for why he has not received treatment for Hepatitis C. Id. Plaintiff states that the Defendants
“all knew of Plaintiff’s serious medical needs[,]” and that they each individually refused to
provide him treatment. (Id. at pp. 7–8.)
Plaintiff directly addresses Defendants’ argument that he has not alleged that they were
aware of his medical condition. Plaintiff states that, given the numerous requests for medical
treatment and grievances he has filed and the Defendants’ positions at the prison, “it is
unreasonable to even assume” that they did not know of Plaintiff’s medical condition. (Id. at

4

p. 9.) He specifically points to Defendants’ responses to his grievances and requests for medical
treatment that he submitted to Defendants “on various occasions” as evidence of Defendants’
deliberate indifference to his medical needs. (Id. at p. 8.) He contends that his grievances filed
on August 28, 2014, and September 29, 2015, directly mentioned Defendant Dr. Gardner. (Id. at
pp. 10–11). He states that Defendant Allen reviewed his grievances regarding his lack of
treatment and that her name is on the grievance response. (Id. at pp. 5, 12.) He goes on to allege
that prison policy required all three Defendants to confer together when he filed his grievances
regarding the continuing denial of medical treatment. Id. “These defendants know Plaintiff is
already diagnosed with hep-c as evidenced by his medical records, and failed to or refuses to
arrange for appropriate treatment for Plaintiff hep-c virus even [in] the face of his repeated
requests after denial of his grievance which merely asked to be treated for hep-c.” (Id. at p. 10.)
Plaintiff states Defendant Gardner recently notified Plaintiff that he has “fibrotic change and
significant scarring of his liver”, which are conditions associated with cancer. Id.
Plaintiff attached to his Response numerous medical requests and grievances that he has
filed regarding his Hepatitis C treatment. The dates of these requests range from June 30, 2011,
to March 27, 2016. (Id. at pp. 16–23.) These records provide further evidence of Defendants’
involvement in Plaintiff’s Hepatitis C treatment (or lack of treatment). Defendant Allen signed
the response to Plaintiff’s July 6, 2011, request seeking treatment for Hepatitis C. (Id. at p. 19.)
The Warden’s September 23, 2014, grievance response states that Allen “reviewed your medical
records.” (Id. at p. 17.) It appears Defendant Gardner signed the response to Plaintiff’s July 22,
2014, request for medical treatment. (Id. at p. 20.) The December 29, 2015, response to
Plaintiff’s medical request, through which Plaintiff again sought treatment for Hepatitis C, states

5

that Plaintiff was “seen by Dr. Gardner.” (Id. at p. 22.) Likewise, the March 27, 2016, response
to another medical request appears to bear Dr. Gardner’s initials. Id.
STANDARD OF REVIEW
Under a Rule 12(b)(6) motion to dismiss, a court must “accept[ ] the allegations in the
complaint as true and constru[e] them in the light most favorable to the plaintiff.” Belanger v.
Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). “A complaint must state a facially
plausible claim for relief, and ‘[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action” does not suffice.
Ashcroft, 556 U.S. at 678.
“The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”

Id. (internal punctuation and citation

omitted). While a court must accept all factual allegations in a complaint as true, this tenet “is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. Id.

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DISCUSSION
I.

Amendment of Plaintiff’s Complaint through his Response to the Motion to Dismiss
As an initial matter, although not properly styled as a motion to amend the Complaint, the

substance of Plaintiff’s Response clearly attempts to allege additional facts to support his claims.
In light of Plaintiff’s pro se status, the Court construes this pleading as a motion to amend the
Complaint. See Newsome v. Chatham Cty. Det. Ctr., 256 F. App’x 342, 344 (11th Cir. 2007)
(holding that, where pro se plaintiff’s response to magistrate judge’s recommendation alleged
new facts, the response should have been construed as a motion to amend the complaint).
“[C]onstruing additional facts in pro se responses to motions to dismiss as motions to amend is
consistent with the accepted practice in this Circuit.” Robbins v. Oubre, No. 5:13-CV-348 CAR,
2014 WL 4070851, at *1 (M.D. Ga. Aug. 15, 2014). Thus, the Court construes Plaintiff’s
response as a Motion to Amend his Complaint.
Further, the Court finds that Plaintiff should be granted leave to amend. “Under Federal
Rule of Civil Procedure 15(a), a party may amend his complaint once as a matter of right within
twenty-one (21) days after service of a motion under Rule 12(b), (e), or (f). 2 Even when a party
may not amend as a matter of right, he may amend with the opposing party’s written consent or
the court’s leave. Fed. R. Civ. P. 15(b). “The court should freely give leave when justice so
requires.” Id. While leave to amend is generally freely given, it is by no means guaranteed.
“The function of Rule 15(a), which provides generally for the amendment of pleadings, is to
2

The Eleventh Circuit has made clear that the Prison Litigation Reform Act (“PLRA”) does not change
this right to amend. Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004) (“We agree with the
majority of circuits that the PLRA does not preclude the district court from granting a motion to amend.
Nothing in the language of the PLRA repeals Rule 15(a).”). Accordingly, the fact that the Court has
already conducted a frivolity review of Plaintiff’s Complaint and issued a Report and Recommendation
does not deprive Plaintiff of his right to amend. Id.

7

enable a party to assert matters that were overlooked or were unknown at the time he interposed
the original complaint or answer.” 6 Wright, Miller & Kane, Federal Practice and Procedure:
Civil 2d § 1473. However, the decision on whether to grant a motion to amend is within the
sound discretion of the trial court. Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663,
666 (5th Cir. 1981). “In making this determination, a court should consider whether there has
been undue delay in filing, bad faith or dilatory motives, prejudice to the opposing parties, and
the futility of the amendment.” Cooks v. United States, No. CV 114-195, 2015 WL 7069665, at
*1 (S.D. Ga. Nov. 13, 2015) (quoting Saewitz v. Lexington Ins. Co., 133 F. App’x 695, 699
(11th Cir. 2005)).
Here, Plaintiff has already amended his Complaint. (Doc. 12.) Nonetheless, allowing
Plaintiff limited leeway to amend his claims would not significantly delay this case. Through his
Response to the Motion to Dismiss, Plaintiff does not add new claims or name new defendants.
Rather, he seeks to cure potential pleading deficiencies that were pointed out in Defendants’
Motion to Dismiss. Additionally, the Court has stayed discovery in this case at Defendants’
request. (Doc. 29.)
Thus, it is prudent to allow Plaintiff to amend to include the allegations in his Response
to the Motion to Dismiss. Further, the Court finds it appropriate to evaluate Defendants’ Motion
to Dismiss as it applies to Plaintiff’s amended allegations and whether those allegations “raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.
II.

Denial of Defendants’ Motion to Dismiss for Failure to State a Claim
Plaintiff contends Defendants violated his Eighth Amendment rights to adequate medical

treatment. The Eighth Amendment’s proscription against cruel and unusual punishment imposes

8

a constitutional duty upon a prison official to take reasonable measures to guarantee the safety of
inmates. The standard for cruel and unusual punishment, embodied in the principles expressed
in Estelle v. Gamble, 429 U.S. 97, 104 (1976), is whether a prison official exhibits a deliberate
indifference to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828
(1994). However, “not every claim by a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment.” Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991) (quoting Estelle, 429 U.S. at 105). Rather, “an inmate must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994).
In order to prove a deliberate indifference claim, a prisoner must overcome three
obstacles. The prisoner must: 1) “satisfy the objective component by showing that [he] had a
serious medical need”; 2) “satisfy the subjective component by showing that the prison official
acted with deliberate indifference to [his] serious medical need”; and 3) “show that the injury
was caused by the defendant's wrongful conduct.” Goebert v. Lee Cty., 510 F.3d 1312, 1326
(11th Cir. 2007). A medical need is serious if it “‘has been diagnosed by a physician as
mandating treatment or [is] one that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.’” Id. (quoting Hill, 40 F.3d at 1187) (emphasis supplied).
As for the subjective component, the Eleventh Circuit has consistently required that “a defendant
know of and disregard an excessive risk to an inmate’s health and safety.” Haney v. City of
Cumming, 69 F.3d 1098, 1102 (11th Cir. 1995). Under the subjective prong, an inmate “must
prove three things: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;
(3) by conduct that is more than [gross] negligence.” Goebert, 510 F.3d at 1327.

9

“The meaning of ‘more than gross negligence’ is not self-evident[.]” Id. In instances
where a deliberate indifference claim turns on a delay in treatment rather than the type of
medical care received, the factors considered are: “(1) the seriousness of the medical need; (2)
whether the delay worsened the medical condition; and (3) the reason for the delay.” Id.
Moreover, a difference in opinion between the prison’s medical staff and the prisoner as to
diagnosis or course of treatment does not amount to a claim under the Constitution. Thigpen,
941 F.2d at 1505 (citation omitted). Only when deliberate indifference to an inmate’s serious
medical needs is demonstrated to be “repugnant to the conscience of mankind” or offensive to
“evolving standards of decency” will it give rise to a valid claim of mistreatment under the
Eighth Amendment. Id. “Deliberate indifference may be established by a showing of grossly
inadequate care as well as by a decision to take an easier but less efficacious course of treatment.
Moreover, when the need for treatment is obvious, medical care which is so cursory as to amount
to no treatment at all may amount to deliberate indifference.” Brown v. Johnson, 387 F.3d 1344,
1351 (11th Cir. 2004) (quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)).
Defendants do not contest that Plaintiff has a serious medical need. They also recognize
that he alleges he submitted requests for medical treatment on several occasions. However, they
attack the subjective prong of Plaintiff’s deliberate indifference allegations by arguing that he
has not alleged that they actually received those requests. (Doc. 27-1, pp. 5–9.) This argument
ignores the plain allegations in Plaintiff’s pleadings preceding the Motion to Dismiss. Plaintiff
repeatedly alleged that he notified medical staff at Smith State Prison, including Defendants, of
his need for Hepatitis C treatment and that these Defendants have ignored his requests. By
arguing that Plaintiff did not submit enough specifics, such as when Defendants received his

10

medical requests, Defendants ask the Court to hold Plaintiff to a hyper-technical standard not
warranted by Rule 12(b)(6). 3
Defendants’ argument on this front is even more easily rejected in light of Plaintiff’s
amendment of his claims through his Response. As described above, Plaintiff directly alleges
that Defendants know that he has Hepatitis C, that he has submitted requests for treatment dating
back to 2011, and that each Defendant has failed to arrange for him to receive treatment and
ignored his requests. He also alleges that, given Defendants’ positions at the prison, they would
have been directly involved in reviewing his requests for medical care and grievances, which
would have given them direct knowledge of his medical condition. 4

Further, he attaches

documents which demonstrate that Defendant Allen reviewed his medical records and medical
requests and that Defendant Gardner has been Plaintiff’s treating physician. These allegations
exceed “threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements.” Ashcroft, 556 U.S. at 678.
Defendants also argue that “Plaintiff has not alleged facts showing that Defendants
Gardner, Allen or Henry acted with conduct that was more than mere negligence.” (Doc. 27-1,
p. 9.) They contend that Plaintiff merely alleges “a difference in medical opinion” and “classic
examples of a matter for medical judgment.” (Doc. 27-1, p. 9 (quoting Adams v. Poag, 61 F.3d
3

Defendants argue that “Plaintiff has not submitted Grievance Number 180311 into the record despite
his claims that it notified Defendants of his need for Hepatitis C treatment.” (Doc. 27-1, p. 8.)
Defendants apparently forgot that they are moving to dismiss Plaintiff’s Complaint at the beginning of the
case, not for summary judgment after discovery.

4

These allegations go beyond relying upon mere supervisory liability. As the Court explained in
dismissing Plaintiff’s claims against Doug Williams and Stanley Williams, in this Section 1983 action,
Plaintiff cannot merely rely upon a defendant’s supervisory position to hold that defendant liable under a
theory of respondeat superior. However, Plaintiff goes much further as to Defendants Henry, Gardner,
and Allen by alleging that, as a result of their positions, they are each aware of his Hepatitis C and have
been personally involved in the failure to provide him treatment.

11

1537, 1545 (11th Cir. 1995), and Waldrop v. Evans, 871 F. 2d 1030, 1033 (11th Cir. 1989).)
This argument is not credible in light of Plaintiff’s allegations. Plaintiff does not take issue with
the mode of treatment he has received. Rather, he repeatedly contends that he is not receiving
any treatment at all. For example, in his Objections, he stated, “Plaintiff has not received as of
this date, [December 13, 2015], any treatment for Hepatitis C[ ]”, and he avers that he “has
received no medical treatment.” (Doc. 21, pp. 3, 5.) Likewise, in his Response to the Motion to
Dismiss, he states that “there has been no treatment” and that he has requested medical treatment
several times, but “no treatment has been provided for years.” (Doc. 32, pp. 1, 6.) 5 Though it
appears Plaintiff may have received some treatment in the past, he alleges Defendants have now
withdrawn that treatment. In light of these allegations, Defendants cannot argue that Plaintiff
merely disagrees with the type of treatment they are providing. See Brown v. Johnson, 387 F.3d
at 1351 (“The defendants erroneously characterize [the plaintiff’s] allegation of deliberate
indifference as nothing more than “mere[ ] disagree[ment] with the treatment prescribed.
[Plaintiff] complains of complete withdrawal of treatment[.]

Taking the allegations in the

complaint as true, the continuing disregard of Brown’s HIV and hepatitis constitutes deliberate
indifference.”).

5

The documents Plaintiff has attached to his Response also raise issues regarding a failure to provide
treatment, not the type of treatment provided. (Doc. 32, p. 16, Aug. 28, 2014, grievance (“[medical staff]
said they would set up an appointment. It is now going on five months and I have not seen the
specialist.”); id. at p. 17, Sept. 23, 2014, grievance response (“Atlanta has to schedule the appointment.
Smith SP medical has no control over when this appointment gets scheduled.”); id. at p. 19, June 30, 2011
health request (“I want to start my treatment for Hepatitis C now. I asked several times in the past. I
hope Smith State Prison medical department treat me this time!”); id. at p. 20, July 22, 2014, health
request (“When will my hepatitis treatments begin? Treatment ordered by specialists in the month of
April 2014. Still have not begun treatment); p. 21, response to Apr. 29, 2015, medical request (“the
provider will discuss with you treatment options”).)

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As Judge Hall found in his February 3, 2016, Order, Plaintiff has plausibly alleged that
Defendants Henry, Allen, and Gardner have acted with deliberate indifference to Plaintiff’s
medical needs. Those claims have only been fortified by Plaintiff’s Response to Defendants’
Motion. Thus, the Court should DENY Defendants’ Motion to Dismiss for failure to state a
claim.
III.

Denial of Defendants’ Motion to Dismiss Plaintiff’s Claim as Untimely
The Court should also reject Defendants’ contention that any claims related to Plaintiff’s

July 6, 2011, medical request are barred by the statute of limitations. (Doc. 27-1, p. 7.) As
Plaintiff correctly points out in his Response, at this stage, this claim falls within the continuing
violations doctrine. (Doc. 32, p. 11.)
Constitutional claims brought pursuant to Section 1983 “are tort actions, subject to the
statute of limitations governing personal injury actions in the state where the § 1983 action has
been brought.” Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011). In states where more
than one statute of limitations exists, the forum state’s general or residual personal injury statute
of limitations applies to all Section 1983 actions filed in federal court in that state. Owens v.
Okure, 488 U.S. 235, 236, 249–50 (1989). Georgia has a two-year statute of limitations for
personal injury actions. O.C.G.A. § 9-3-33. Although state law determines the applicable statute
of limitations, “[f]ederal law determines when the statute of limitations begins to run.” Lovett v.
Ray, 327 F.3d 1181, 1182 (11th Cir. 2003). As a general rule, “the statute of limitations does not
begin to run until the facts which would support a cause of action are apparent or should be
apparent to a person with a reasonably prudent regard for his rights.” Id.

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The continuing violation doctrine holds that a plaintiff’s action is not time-barred where
some of the alleged violations occurred within the statutory period, even though other violations
did not, because the early acts were part of a continuing wrong. Hipp v. Liberty Nat’l Life Ins.
Co., 252 F.3d 1208, 1221 (11th Cir. 2001). “The critical distinction in the continuing violation
analysis is whether the plaintiff complains of the present consequence of a one time violation,
which does not extend the limitations period, or the continuation of that violation into the
present, which does.” Lovett, 327 F.3d at1183. Refusal to provide medical treatment has been
held to constitute a continuing violation in some circumstances. See Shomo v. City of N.Y., 579
F.3d 176, 182 (2d Cir. 2009) (holding that “a policy of doctors and prison staff disregarding
medical treatment recommendations” constitutes a continuing violation); Neel v. Rehberg, 577
F.2d 262, 264 (5th Cir. 1978) (refusal to provide medical treatment, shower, telephone, and
visiting privileges to prisoner constitutes continuing wrong); Donaldson v. O’Connor, 493 F.2d
507, 529 (5th Cir. 1974) (holding that Section 1983 action brought by former mental patient for
continuous civil confinement without psychiatric treatment did not accrue until the patient was
released).
However, the Eleventh Circuit has “limited the application of the continuing violation
doctrine to situations in which a reasonably prudent plaintiff would have been unable to
determine that a violation had occurred.” Ctr. for Biological Diversity v. Hamilton, 453 F.3d
1331, 1335 (11th Cir. 2006). “If an event or series of events should have alerted a reasonable
person to act to assert his or her rights at the time of the violation, the victim cannot later rely on
the continuing violation doctrine.” Hipp, 252 F.3d at 1222. Even where a continuing violation
for disregarding an inmate’s need for surgery has been found, the Eleventh Circuit has held that

14

the cause of action accrues, and the statute of limitations begins to run, once the plaintiff receives
the surgery. Robinson v. United States, 327 F. App’x 816, 818 (11th Cir. 2007) (“The facts, as
alleged in the complaint, however, support an inference of continued disregard of Robinson’s
need of medical treatment for his hernia until October 3, 2003, when Robinson’s hernia surgery
was performed.”).

Similarly, once an inmate is transferred from the prison where the

constitutional violation occurred to another facility, the statute of limitations clock begins to tick.
See id. (“Plaintiff sufficiently alleges in his Complaint a continuing violation that did not end
until he was transferred to another prison in May of 2007.”)
Plaintiff alleges that Defendants have continually denied his requests for treatment for
Hepatitis C from 2011 through April of 2016 when he filed his Response brief. (Doc. 32, p. 8.)
It is not clear from the face of his Complaint that Plaintiff was armed with sufficient facts to
bring his claims to the Court more than two years before he filed this lawsuit. Consequently, at
this early stage, the Court should not dismiss any of his claims as time-barred, and it should
DENY this portion of Defendant’s Motion.
IV.

Denial of Defendant’s Motion to Dismiss Based on Qualified Immunity
Defendants argue that they should enjoy qualified immunity as to Plaintiff’s claims.

(Doc. 27-1, pp. 9–10.)

Qualified immunity shields “government officials performing

discretionary functions . . . from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Lee v. Ferraro, 284 F.3d
1188, 1193–94 (11th Cir. 2002). “The purpose of this immunity is to allow government officials
to carry out their discretionary duties without the fear of personal liability or harassing

15

litigation[.]” Id. at 1194. “Qualified immunity should be applied at the earliest possible stage of
litigation, and it is therefore appropriate to decide its applicability on a motion to dismiss. Often
however, this is not possible, and for this reason it is more typically addressed at summary
judgment.” Horn v. Jones, No. 14-20341-CIV, 2015 WL 3607012, at *6 (S.D. Fla. May 8,
2015); see also Marshall v. Fla. Dep’t of Corr., No. 10–20101–cv, 2011 WL 1303213, at *4
(S.D. Fla. March 31, 2011) (“[W]here it is not evident from the allegations of the complaint
alone that a defendant is entitled to qualified immunity, the case will proceed to the summary
judgment stage, the most typical juncture at which defendants entitled to qualified immunity are
released from the threat of liability and the burden of further litigation.”) (emphasis in original)
(citation omitted).
To receive qualified immunity, Defendants must first establish that they were acting
within their discretionary authority during the events in question. Cottone v. Jenne, 326 F.3d
1352, 1357 (11th Cir. 2003).

“A government official acts within his or her discretionary

authority if objective circumstances compel the conclusion that challenged actions occurred in
the performance of the official’s duties and within the scope of this authority.” Hill, 40 F.3d at
1185 n.17. Once the government official has shown that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified
immunity. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (citing Vinyard v. Wilson,
311 F.3d 1340, 1346 (11th Cir. 2002)).
Here, Defendants acted within their respective discretionary duties when making
decisions regarding Plaintiff’s medical treatment. Thus, the burden shifts to Plaintiff to show
that Defendants are not entitled to qualified immunity. Cottone, 326 F.3d at 1358. To make this

16

showing, Plaintiff must first establish the violation of a constitutional right on the facts alleged.
Saucier v. Katz, 533 U.S. 194, 200 (2001); Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir.
2013). As explained above, Plaintiff has alleged conduct by Defendants that, if proven true,
plausibly establishes a violation of deliberate indifference to Plaintiff’s serious medical needs
under the Eighth Amendment. Consequently, his Complaint, as amended, satisfies the first
qualified immunity prong.
Having alleged a constitutional violation, Plaintiff must demonstrate that the
constitutional right was clearly established at the time of the alleged misconduct. Saucier, 533
U.S. at 200. 6

“The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Id. at 202; Wilson v. Layne, 526 U.S. 603, 615 (1999). “The ‘very
action in question’ does not have to have been previously held unlawful, but the unlawfulness of
the conduct must be apparent in light of pre-existing law.” Harris v. Coweta Cty., 21 F.3d 388,
393 (11th Cir. 1994) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Defendants do not contest that Plaintiff’s right to receive medical treatment for his
Hepatitis C was clearly established at the time of their alleged violations.

Rather, they

essentially only attack the first prong of the qualified immunity analysis by referencing their
arguments as to whether Plaintiff states a claim for relief. (Doc. 27-1, p. 10 (“[Plaintiff] must
show that his constitutional rights were clearly established at the time of the alleged violations in
order to overcome the qualified immunity defense, but he cannot make this showing because, as
shown above, the Complaint and Objections fail to plead a constitutional violation by
6

The Supreme Court has clarified, however, that courts need not analyze these qualified immunity steps
sequentially. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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Defendants.”).)

Regardless, Eleventh Circuit precedent has long made clear that a prison

official’s failure to provide a prisoner treatment for his Hepatitis C violates the Eighth
Amendment.

See Brown, 387 F.3d at 1351 (prison medical administrator and physician’s

alleged complete failure to treat Hepatitis C condition amounted to deliberate indifference)
Kimbell ex. rel Liddell v. Clayton Cty., Ga., 170 F. App’x 663 (11th Cir. 2006) (“[D]eliberate
indifference to serious medical needs is a violation of clearly established law.”) (citing Behrens
v. Pelletier, 516 U.S. 299, 313 (1996)); Brown v. Johnson-Waters, No. 603CV071, 2007 WL
1136077, at *4 (S.D. Ga. Apr. 16, 2007) (finding that clearly established law gave fair notice to
prison officials that interrupting medication prescribed to plaintiff and failure to treat Hepatitis C
violated the constitution.).
Plaintiff plausibly alleges that Defendants violated his rights which have been clearly
established for at least forty years. Estelle v. Gamble, 429 U.S. 97 (1976). Consequently, the
Court should DENY Defendants’ Motion to Dismiss based on qualified immunity.
CONCLUSION
For all of the above-stated reasons, I RECOMMEND that the Court DENY Defendants’
Motion to Dismiss. Additionally, upon denial of Defendants’ Motion, the Court should lift the
stay of discovery in this case.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28

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U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 16th day of September,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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