Winberly Jr. v. Broome et al

Filing 11

ORDER directing the United States Marshal Service to serve a copy of this Order and Plaintiff's Complaint and Amended Complaint upon all Defendants. Generally, a defendant who timely returns the waiver is not required to answer the complaint until sixty days after the date that the marshal sent the request for waiver. Signed by Magistrate Judge R. Stan Baker on 12/9/2015. (csr)

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

LEONARD WIMBERLY, JR.,
Plaintiff,

CIVIL ACTION NO. 6:15-cv-23

v.
DEAN BROOME; NURSE GAIL FERRAR;
and NURSE MARTHA MIDDLETON,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Georgia State Prison in Reidsville, Georgia, has
submitted a Complaint brought pursuant to 42 U.S.C. § 1983. (Doc. 1.) For the reasons set forth
below, after conducting the requisite frivolity review, I RECOMMEND that to the extent
Plaintiff sets forth claims against Defendants in their official capacity, those claims should be
DISMISSED.

However, Plaintiff’s claims against Defendants in their individual capacity

survive frivolity review. Accordingly, the undersigned ORDERS a copy of this Order and
Plaintiff’s Complaint be served upon all Defendants. The Court provides additional instructions
to Plaintiff and Defendants pertaining to the future litigation of this action, which the parties are
urged to read and follow.
BACKGROUND 1
Plaintiff filed this action against Defendants Dean Broom, Gail Ferra, and Martha
Middleton on March 4, 2015. (Doc. 1.) Plaintiff alleges that Defendant Broom is the Director of
the Medical Department at Georgia State Prison and that Defendants Ferra and Middleton are
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The facts set forth below are taken from Plaintiff’s Complaint, as amended, and are accepted as true, as
they must be at this stage.

nurses at the prison. (Id. at p. 4.) In his Complaint, Plaintiff alleges that Defendants denied him
access to necessary medical care. Plaintiff states that he has notified all three Defendants since
November of 2013 that he has unbearable pain in his right leg, hip, and thigh area. (Id. at p. 5.)
Plaintiff states that despite this knowledge, Defendants refused to provide him with evaluations
of his right leg, hip, and thigh area. Id. He states that this indifference to his medical needs has
caused his condition to worsen and has caused him unbearable pain. Id. Plaintiff states that on
December 1, 2014, he was sent to Augusta State Medical Prison for an MRI and “it was
determined that the head of [Plaintiff’s] right hip bone was dying and [he] will have to undergo
hip replacement surgery.” Id. He contends that his condition could have been detected a long
time ago if Defendants had provided him adequate medical treatment.
On September 4, 2015, with permission of the Court, Plaintiff amended his Complaint.
(Doc. 9.) Therein, Plaintiff reiterates his allegations that Defendants ignored his leg and hip
condition despite direct knowledge of his unbearable pain. Id. Plaintiff also states that on
May 15, 2015, he was assaulted (presumably by another inmate) and that he was unable to
defend himself because of his immobility. (Id. at p. 2.)
DISCUSSION
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. Under 28
U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment
of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows
an inability to pay the filing fee and also includes a statement of the nature of the action which
shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must
dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be
granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the

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Court must review a complaint in which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is
frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

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In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”). The requisite review of Plaintiff’s
Complaint raises several doctrines of law which require the dismissal of the Complaint.
I.

Official Capacity Claims
It is not clear if Plaintiff is suing Defendants in only their individual capacities or also in

their official capacities.

However, Plaintiff cannot sustain a Section 1983 claim against

Defendants in their official capacities. States are immune from private suits pursuant to the
Eleventh Amendment and traditional principles of state sovereignty. Alden v. Maine, 527 U.S.
706, 712–13 (1999). Section 1983 does not abrogate the well-established immunities of a state
from suit without its consent. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989).
Because a lawsuit against a state officer in his official capacity is “no different from a suit
against the [s]tate itself,” such defendant is immune from suit under Section 1983. Id. at 71.
Here, the State of Georgia would be the real party in interest in a suit against Defendants in his
official capacity as an officer at a state penal institution, and, accordingly, the Eleventh
Amendment immunizes this actor from suit. See Free v. Granger, 887 F.2d 1552, 1557 (11th
Cir. 1989). Absent a waiver of that immunity, Plaintiff cannot sustain any constitutional claims

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against Defendants Broom, Ferra, and Middleton in their official capacities, and, therefore any
such claims should be DISMISSED.
II.

Deliberate Indifference to Serious Medical Need Claims
The Eighth Amendment’s proscription against cruel and unusual punishment imposes a

constitutional duty upon prison officials 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

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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.
Based on Plaintiff’s allegations, he requested medical assistance directly from each of the
Defendants on numerous occasions. 2 Further, he alleges that he had unbearable pain in his leg,
hip, and thigh area, and that, despite knowledge of that pain, each of these Defendants refused to
have his needs evaluated for several months. The allegations constitute a plausible claim for
deliberate indifference to serious medical needs. 3

Accordingly, Plaintiff’s claims against

Defendants Broom, Ferra, and Middleton should proceed.
CONCLUSION
Plaintiff’s allegations, when read in a light most favorable to the Plaintiff, arguably state
colorable claims for relief under 42 U.S.C. § 1983 against Defendants Broom, Ferra, and

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The Court notes that Defendant Broom is apparently the Director of the Medical Department at Georgia
State Prison. This supervisory position alone cannot create liability under Section 1983. In Section 1983
actions, liability must be based on something more than a theory of respondeat superior. Bryant v. Jones,
575 F.3d 1281, 1299 (11th Cir. 2009); Braddy v. Fla. Dep’t of Labor & Employment Sec., 133 F.3d 797,
801 (11th Cir. 1998). A supervisor may be liable only through personal participation in the alleged
constitutional violation or when there is a causal connection between the supervisor’s conduct and the
alleged violations. Id. at 802. Here, Plaintiff alleges that Defendant Broom personally participated in the
constitutional violation by having direct knowledge of Plaintiff’s serious medical needs and refusing him
treatment.
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From Plaintiff’s Amended Complaint, it is not clear if he seeks to hold Defendants liable for failure to
protect him from the May 15, 2015 assault. It may be that Plaintiff recounts this incident as an example
of the damages he has endured due to Defendants’ alleged failure to provide him medical treatment.
However, should Plaintiff seek to hold Defendant liable under a theory of failure to protect from the
assault, like any deliberate indifference claim, he must satisfy both an objective and a subjective inquiry.
Chandler v. Crosby, 379 F.3d 1278, 1289–90 (11th Cir. 2004). “To be deliberately indifferent a prison
official must know of and disregard ‘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.’” Smith v. Reg’l Dir. of Fla. Dep’t of Corr., 368 F. App’x 9, 14 (11th
Cir. 2010) (quoting Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313, 1319–20 (11th
Cir. 2005)). Because it is not clear if Plaintiff intends to assert such a claim and the Court already found
that this action should be served on Defendants, the Court need not assess the viability of any failure to
protect claim at this time.

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Middleton. A copy of this Order and Plaintiff’s Complaint (doc. 1) and Amended Complaint
(doc. 9) shall be served upon these Defendants by the United States Marshal without prepayment
of cost.
It is my RECOMMENDATION that Plaintiff’s official capacity claims be
DISMISSED.
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. 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
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 to which
objection are 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 Plaintiff.

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The Court also provides the following instructions to the parties that will apply to the
remainder of this action and which the Court urges the parties to read and follow.
INSTRUCTIONS TO DEFENDANTS
Because Plaintiff is proceeding in forma pauperis, the undersigned directs that service be
effected by the United States Marshal. Fed. R. Civ. P. 4(c)(3). In most cases, the marshal will
first mail a copy of the complaint to the Defendant by first-class mail and request that the
Defendant waive formal service of summons. Fed. R. Civ. P. 4(d); Local Rule 4.7. Individual
and corporate defendants have a duty to avoid unnecessary costs of serving the summons, and
any such defendant who fails to comply with the request for waiver must bear the costs of
personal service unless good cause can be shown for the failure to return the waiver. Fed. R.
Civ. P. 4(d)(2). Generally, a defendant who timely returns the waiver is not required to answer
the complaint until sixty (60) days after the date that the marshal sent the request for waiver.
Fed. R. Civ. P. 4(d)(3).
IT IS FURTHER ORDERED that Defendants are hereby granted leave of court to take
the deposition of the Plaintiff upon oral examination. Fed. R. Civ. P. 30(a). Defendants are
further advised that the Court’s standard 140 day discovery period will commence upon the
filing of the last answer. Local Rule 26.1. Defendants shall ensure that all discovery, including
the Plaintiff’s deposition and any other depositions in the case, is completed within that
discovery period.
In the event that Defendants take the deposition of any other person, Defendants are
ordered to comply with the requirements of Federal Rule of Civil Procedure 30. As the Plaintiff
will likely not be in attendance for such a deposition, Defendants shall notify Plaintiff of the
deposition and advise him that he may serve on Defendants, in a sealed envelope, within ten (10)

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days of the notice of deposition, written questions the Plaintiff wishes to propound to the
witness, if any. Defendants shall present such questions to the witness seriatim during the
deposition. Fed. R. Civ. P. 30(c).
INSTRUCTIONS TO PLAINTIFF
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants or, if
appearance has been entered by counsel, upon their attorneys, a copy of every further pleading or
other document submitted for consideration by the Court. Plaintiff shall include with the original
paper to be filed with the Clerk of Court a certificate stating the date on which a true and correct
copy of any document was mailed to Defendants or their counsel. Fed. R. Civ. P. 5. “Every
pleading shall contain a caption setting forth the name of the court, the title of the action, [and]
the file number.” Fed. R. Civ. P. 10(a).
Plaintiff is charged with the responsibility of immediately informing this Court and
defense counsel of any change of address during the pendency of this action. Local Rule 11.1.
Plaintiff’s Failure notify the Court of a change in his address may result in dismissal of this case.
Plaintiff has the responsibility for pursuing this case. For example, if Plaintiff wishes to
obtain facts and information about the case from Defendants, Plaintiff must initiate discovery.
See generally, Fed. R. Civ. P. 26, et seq. The discovery period in this case will expire 140 days
after the filing of the last answer. Local Rule 26.1. Plaintiff does not need the permission of the
Court to begin discovery, and Plaintiff should begin discovery promptly and complete it within
this time period. Local Rule 26.1. Discovery materials should not be filed routinely with the
Clerk of Court; exceptions include: when the Court directs filing; when a party needs such
materials in connection with a motion or response, and then only to the extent necessary; and
when needed for use at trial. Local Rule 26.4.

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Interrogatories are a practical method of discovery for incarcerated persons. See Fed. R.
Civ. P. 33. Interrogatories may be served only on a party to the litigation, and, for the purposes
of the instant case, this means that interrogatories should not be directed to persons or
organizations who are not named as Defendants. Interrogatories are not to contain more than
twenty-five (25) questions. Fed. R. Civ. P. 33(a). If Plaintiff wishes to propound more than
twenty-five (25) interrogatories to a party, Plaintiff must have permission of the Court. If
Plaintiff wishes to file a motion to compel, pursuant to Federal Rule of Civil Procedure 37, he
should first contact the attorneys for Defendants and try to work out the problem; if Plaintiff
proceeds with the motion to compel, he should also file a statement certifying that he has
contacted opposing counsel in a good faith effort to resolve any dispute about discovery. Fed. R.
Civ. P. 26(c); 37(a)(2)(A); Local Rule 26.7.
Plaintiff has the responsibility for maintaining his own records of the case. If Plaintiff
loses papers and needs new copies, he may obtain them from the Clerk of Court at the standard
cost of fifty cents ($.50) per page. If Plaintiff seeks copies, he should request them directly
from the Clerk of Court and is advised that the Court will authorize and require the
collection of fees from his prison trust fund account to pay the cost of the copies at the
aforementioned rate of fifty cents ($.50) per page.
If Plaintiff does not press his case forward, the court may dismiss it for want of
prosecution. Fed. R. Civ. P. 41; Local Rule 41.1.
It is Plaintiff’s duty to cooperate fully in any discovery which may be initiated by
Defendants. Upon no less than five (5) days’ notice of the scheduled deposition date, the
Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath or
solemn affirmation, any question which seeks information relevant to the subject matter of the

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pending action. Failing to answer questions at the deposition or giving evasive or incomplete
responses to questions will not be tolerated and may subject Plaintiff to severe sanctions,
including dismissal of this case.
As the case progresses, Plaintiff may receive a notice addressed to “counsel of record”
directing the parties to prepare and submit a Joint Status Report and a Proposed Pretrial Order.
A plaintiff proceeding without counsel may prepare and file a unilateral Status Report and is
required to prepare and file his own version of the Proposed Pretrial Order. A plaintiff who is
incarcerated shall not be required or entitled to attend any status or pretrial conference which
may be scheduled by the Court.
ADDITIONAL INSTRUCTIONS TO PLAINTIFF REGARDING
MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT
Under this Court’s Local Rules, a party opposing a motion to dismiss shall file and serve
his response to the motion within fourteen (14) days of its service. “Failure to respond shall
indicate that there is no opposition to a motion.” Local Rule 7.5. Therefore, if Plaintiff fails to
respond to a motion to dismiss, the Court will assume that he does not oppose the Defendants’
motion. Plaintiff’s case may be dismissed for lack of prosecution if Plaintiff fails to respond to a
motion to dismiss.
Plaintiff’s response to a motion for summary judgment must be filed within twentyone (21) days after service of the motion. Local Rules 7.5, 56.1. The failure to respond to such a
motion shall indicate that there is no opposition to the motion. Furthermore, each material fact
set forth in the Defendants’ statement of material facts will be deemed admitted unless
specifically controverted by an opposition statement. Should Defendants file a motion for
summary judgment, Plaintiff is advised that he will have the burden of establishing the existence
of a genuine dispute as to any material fact in this case. That burden cannot be carried by

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reliance on the conclusory allegations contained within the complaint. Should the Defendants’
motion for summary judgment be supported by affidavit, Plaintiff must file counter-affidavits if
he desires to contest the Defendants’ statement of the facts. Should Plaintiff fail to file opposing
affidavits setting forth specific facts showing that there is a genuine dispute for trial, any factual
assertions made in Defendants’ affidavits will be accepted as true and summary judgment may
be entered against the Plaintiff pursuant to Federal Rule of Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of December,
2015.

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

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