Davison v. Georgia Correctional Health, LLC et al

Filing 30

ORDER granting 26 Motion for Reconsideration re 25 Order on Motion to Stay, Order on Motion to Modify Local Rule 26.1 Time Limitations, Order on Motion for Leave of Absence and VACATES that portion of its June 20, 2016 Order granting what in effect is a discovery stay. Within twenty one days of the date of this Order is served, the parties shall confer and in good faith present a Rule 26(f) Report. Signed by Magistrate Judge G. R. Smith on 7/12/2016. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
CINDY DAVISON, as Administrator
of the Estate of Randall Davison,
Plaintiff,
v.
STEPHEN NICOLOU, P.A., and
SERGEANT DEDRICK ANTHONY
Defendants.

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Case No. CV616-039

ORDER
Plaintiff moves this Court to reconsider its June 20, 2016,
discovery-stay Order. Doc. 26. Defendants oppose. Doc. 27.

I. BACKGROUND
On behalf of Randall Davison’s estate, Cindy Davison (his sister)
brings this 42 U.S.C. § 1983 action against defendants Stephen Nicolou,
P.A., and Sergeant Dedrick Anthony, alleging that they were deliberately
indifferent to Randall’s serious medical needs while he was incarcerated
at the prison where they worked. Doc. 14. Consequently, Randall died
one month before his scheduled release.

Id. at 3 ¶ 7. He “was one of ten

men who died while in that prison’s custody, between May 2014 and

February 2015.” Id. ¶ 8.
The Court has been citing to Cindy’s Amended Complaint. She
originally sued only Nicolou and another, since-dismissed defendant.
Docs. 1, 21 & 22. Nicolou moved to dismiss that original Complaint on
qualified immunity grounds. 1 Doc. 12. He also moved to stay discovery,
doc. 13, to which Cindy consented. Doc. 17. Her Amended Complaint
adds defendant Anthony plus reinforcing, “deliberate indifference”
allegations. Doc. 14. In light of those changes, Nicolou moved to modify

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As was recently explained:
“The purpose of this immunity is to allow government officials to carry out
their discretionary duties without the fear of personal liability or harassing
litigation, protecting from suit all but the plainly incompetent or one who is
knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th
Cir. 2002) (internal citation omitted). “Qualified immunity gives government
officials breathing room to make reasonable but mistaken judgments, and
protects all but the plainly incompetent or those who knowingly violate the
law.” Messerschmidt v. Millender , __ U.S. __, 132 S. Ct. 1235, 1244-45 (2012)
(citations and internal quotations omitted). “[W]hether an official protected by
qualified immunity may be held personally liable for an allegedly unlawful
official action generally turns on the ‘objective legal reasonableness' of the
action, assessed in light of the legal rules that were ‘clearly established’ at the
time it was taken.” Id . at 1245 (quoting Anderson v. Creighton , 483 U.S. 635,
639 (1987)).

Salter v. Booker , 2016 WL 3645196 at * 7 (S.D. Ala. June 29, 2016). “The salient
question is whether, looking to the decisions of the Supreme Court, the Eleventh
Circuit, and the Georgia Supreme Court, the state of the law [at the time of the
Randall’s illness and death] gave [these defendants] fair warning that their conduct
was unlawful.” Bowen v. Warden Baldwin State Prison , ___ F.3d ___, 2016 WL
3435501 at * 8 (11th Cir. June 22, 2016) (quotes and cite omitted).

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Local Rule 26.1’s 2 time constraints -- basically, stay discovery. Doc. 23.
While Anthony has neither been served nor appeared in this case,
Nicolou’s attorneys indicate that they will be representing him, too. Doc.
13-1 at 3-4. By Court Order, both defendants have until August 1, 2016,
to answer or move to dismiss. Doc. 23 at 2; see also docs. 18 & 19. After
Cindy amended her Complaint, the defendants renewed their stay motion
-- to which Cindy did not consent, doc. 23 at 3 -- and thus freeze the
parties’ Rule 26 deadlines (hence, discovery) until after the district judge
rules on Nicolou’s forthcoming, renewed dismissal motion.

Id. at 3.

Without waiting for Cindy’s response, the Court granted that
motion. Doc. 25. Cindy now moves for reconsideration, contending that
the Court should have awaited her response, her amended complaint
neutralized the still-pending dismissal motion (doc. 12), and that medical
needs (she is ill, and a material witness has terminal cancer) warrant
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In pertinent part Local Rule 26.1 requires that:
(a) The parties shall confer by the earlier of 60 days after any defendant has
been served with the complaint or 45 days after any defendant has appeared.
(b) Within 14 days after the required conference pursuant to Fed. R. Civ. P.
26(f), the parties shall submit to the Court a written report outlining their
proposed discovery plan. This report shall conform to the language and format
of the standard form included in the Appendix of Forms to these rules (and
furnished by the Clerk to the plaintiff upon the filing of the complaint).

L.R. 26.1(a) & (b); see also doc. 4 (General Order reiterating those deadlines).
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continued discovery. Doc. 26.

II. ANALYSIS
The Court agrees with Cindy; it should have awaited her
stay-motion response. Nevertheless, defendants insist, no
reconsideration is warranted because no Answer has been filed and
discovery does not otherwise commence until that happens. Doc. 27.
And, they further contend, all that is being stayed here is the parties’ Rule
26 initial conference and reporting obligations.

Id. Stays, they remind,

are encouraged when case-dispositive dismissal motions are filed,
especially immunity defenses designed to shield defendants from
litigation costs outright.

Id.

Defendants represent that they will be

filing a qualified- immunity-based dismissal motion soon.

Id. They also

challenge Cindy’s health claim, noting her failure to sufficiently specify
the illnesses to which she adverts. Too, preservation depositions -rather than full discovery -- are always an option.

Id . at 1-3.

The Court again agrees with Cindy. As she notes in her reply brief,
doc. 29, there is still no pending motion to dismiss. Furthermore, her
Amended Complaint packs a pretty powerful claim -- that Randall visibly
suffered from an inflamed forearm tattoo, yet these defendants were

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deliberately indifferent:
4. Despite the discolored area around Mr. Davison’s tattoo; the
purplish-red skin on his arm, neck, and chest; a reddened mass on
his neck; the tenderness of his chest; his complaints of pain and
difficulty breathing and walking; and his numerous pleas for
medical care; GSP’s medical provider refused to treat Mr. Davison
on multiple occasions between January 16, 2015, and January 26,
2015.
5. When Mr. Davison became critically ill on a Friday due to the
infected tattoo, the Defendants left him to further deteriorate
without any medical care for three full days, because the prison did
not have a person authorized to make treatment decisions readily
available over the weekend. No efforts were made to send Mr.
Davison to a hospital emergency department or to any outside
provider, even though he was clearly succumbing to a rapidly
worsening infection. When Mr. Davison finally received treatment
on the following Monday, his infection had progressed to severe
sepsis from which he did not recover.
Doc. 14 at 2; see also id. at 4 ¶ 14 (alleging that Nicolou was the physician
assistant responsible for Randall, was aware of his condition, but simply
refused to treat him during his urgent-medical-care phase); id. at 4 ¶ 15
(“Sergeant Anthony was aware of Mr. Davison’s need for medical care,
but with deliberate indifference, prevented him from accessing medical
care, at a time when [Randall’s] condition required urgent medical
attention.”).
Those allegations no doubt will be cited to pierce the putative
qualified immunity defense.

See Lancaster v. Monroe Cnty., Ala ., 116
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F.3d 1419, 1425 (11th Cir. 1997) (deliberate indifference can be found
where an official “knows that an inmate is in serious need of medical care,
but . . . fails or refuses to obtain medical treatment for the inmate.”);

McElligott v. Foley , 182 F.3d 1248, 1255 (11th Cir. 1999) (an official may
act with deliberate indifference by delaying the treatment of serious
medical needs, providing grossly inadequate care, deciding to take an
easier but less efficacious course of treatment, or providing medical care
that is so cursory as to amount to no medical care); see also McNeeley v.

Wilson , 2016 WL 1730651 at * 4 (11th Cir. May 2, 2016) (corrections
officers were on notice that delaying a proper decontamination for over 20
minutes despite complaints about effects of pepper spray could result in
clearly established constitutional violation, and thus officers were not
entitled to qualified immunity from § 1983 deliberate indifference claim
brought by inmate who was not allowed to decontaminate his person for
four hours after being pepper sprayed, despite his complaints of extreme
difficulty breathing, burning skin, and red eyes).

III. CONCLUSION
The Court GRANTS plaintiff’s motion for reconsideration, doc. 26,
and VACATES that portion of its June 20, 2016 Order (doc. 25) granting

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what in effect is a discovery stay. Within 21 days of the date this Order is
served, the parties shall confer and in good faith present a Rule 26(f)
Report. They otherwise shall litigate this case while the district judge
considers the current and any renewed dismissal motion.

SO ORDERED , this 12th day of July, 2016.

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UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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