Davison v. Georgia Correctional Health, LLC et al

Filing 48

ORDER denying 36 Motion to Stay. Signed by Magistrate Judge G. R. Smith on 10/5/16. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
CINDY DAVISON, Individually and
as Administrator of the Estate of
Randall Davison,
Plaintiff,
v.

CV616-039

STEPHEN NICOLOU, P.A., and
SERGEANT DEDRICK ANTHONY
Defendants.

ORDER
For the second time the defendants in this 42 U.S.C. § 1983
prison-death case move to dismiss and to stay discovery. Docs. 35 & 36.
The district judge will decide the dismissal motion, while the stay motion
will be resolved here.

I. BACKGROUND
On behalf of Randall Davison’s estate, Cindy Davison (his sister)
brought 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 11 7. He “was one of ten

men who died while in that prison’s custody, between May 2014 and
February 2015.” Id. 11 8.
Cindy 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. But then
she amended her Complaint to add Anthony and bolster her “deliberate
1

As has been 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 , 826 F.3d 1312, 1325 (11th
Cir. 2016) (quotes and cite omitted).
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indifference” allegations. Doc. 14. Nevertheless, Nicolou moved to
modify Local Rule 26.1’s time constraints -- basically, stay discovery.
Doc. 23.
The Court granted the stay motion but, upon Cindy’s
reconsideration motion, vacated it.

Davison v. Nicolou , 2016 WL

3866573 (S.D. Ga. July 13, 2016). First, only Nicolou had appeared by
then, and moved to dismiss the original Complaint. Counsel for both
defendants signaled, however, that both would again move to dismiss her
Amended Complaint. Id . at * 2. Second, her amendment alleged that
Randall visibly suffered from an inflamed forearm tattoo, yet the
defendants were 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
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on the following Monday, his infection had progressed to severe
sepsis from which he did not recover.
Doc. 14 (Amended Complaint) at ¶¶ 4, 5; see also ¶ 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); ¶ 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, the Court concluded, may well be enough to
pierce the defendants’ then putative (since formally raised) qualified
immunity defense. Davison , 2016 WL 3866573 at *3 (citing Lancaster v.

Monroe Cnty., Ala ., 116 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
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medical care), and 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)).
That’s still not enough, the defendants contend, in moving to
dismiss and stay discovery. Docs. 36 & 45. Cindy disagrees. Doc. 40.

II. ANALYSIS
Defendants argue that Cindy continues to plead only negligence, not
the deliberate indifference needed to support a § 1983 claim. Doc. 36-1 at
1-5. So, they want another stay.

Id. at 5-8. The core of their renewed

motion to dismiss:
As previously shown, the broad premise of the lawsuit is that
inmates at GSP are denied medical care on evenings and weekends,
whereas the specific fact allegations show the presence of
after-hours or “on-duty” evening medical staffing and also the
allegations show that weekend staffing and care was available to
inmates at GSP. Likewise, the broad premise of the lawsuit, and
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also some of its general allegations that are not particularized to any
individual or Defendant, is that medical care was refused or denied,
whereas the specific fact allegations that pertain to P.A. Nicolou are
that Mr. Davison came to him on one occasion seeking medical care
or attention and on that occasion P.A. Nicolou provided treatment.
The allegation is that the wrong treatment was provided but such
course of treatment claims are not constitutional claims and instead
sound in negligence.
Doc. 35-1 at 1-2.
The Amended Complaint, defendants contend, “does not cure the
fatal defect of the original complaint because it still travels under this
same negligence theory. With minor modification, the gist of the lawsuit
remains that P.A. Nicolou -- who examined Mr. Davison on one occasion
and decided on and provided a course of treatment -- should have known
that his selected course of treatment would not cure Mr. Davison. This is
classic negligence theory.” Doc. 35-1 at 2.
The defendants have a point. “Using the phrase ‘deliberately
indifferent’ as a mere shibboleth is not enough; threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,
no longer suffice. . . .”

Williams v. Grant , 2009 WL 3317262 at * 2 (S.D.

Ga. Oct. 14, 2009). And, as underscored in another infection-based,
inmate fatality case:
Deliberate indifference is not equivalent to “medical malpractice.”
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See, e.g., Campbell v. Sikes , 169 F.3d 1353, 1363 (11th Cir. 1999)
(contrasting deliberate indifference to a prisoner's serious medical
needs with medical malpractice). To properly allege deliberate
indifference, a plaintiff must allege that each defendant “(1) had
subjective knowledge of a risk of serious harm; (2) disregard[ed] that
risk; and (3) acted with more than gross negligence.” Harper v.
Lawrence County., Ala ., 592 F.3d 1227, 1234 (11th Cir. 2010) (citing
Burnette v. Taylor , 533 F.3d 1325, 1331 (11th Cir. 2008)). To put it
another way, “[t]here is no liability for ‘an official's failure to
alleviate a significant risk that he should have perceived but did
not,’” Cottrell v. Caldwell , 85 F.3d 1480, 1491 (11th Cir. 1996), or for
the fact that “‘more should have been done’ to diagnose and treat
[an injury].” Campbell , 169 F.3d at 1363. Moreover, “imputed or
collective knowledge cannot serve as the basis for a claim of
deliberate indifference. Each individual Defendant must be judged
separately and on the basis of what that person knows.” Harper,
592 F.3d at 1234 (emphasis added) (citations and internal
punctuation omitted) (citing Burnette , 533 F.3d at 1331); Cook ex
rel. Estate of Tessier v. Sheriff of Monroe County., Fla ., 402 F.3d
1092, 1116 (11th Cir. 2005) (“[N]either respondeat superior nor
vicarious liability exists under § 1983.”).
Miller v. Correctional Medical Services, Inc ., 2010 WL 3723998 at * 4
(M.D. Ala. Sept. 16, 2010); see also id. at * 6 (complaint failed to plead
facts showing how each defendant was deliberately indifferent to inmate’s
sepsis-induced death).
But Cindy says she has pled enough deliberate indifference facts. 2
She recounts her Amended Complaint:
2

In fact, she construes the defendants’ second stay motion as a motion for
reconsideration of the last Order -- but masquerading as a stay motion -- one that fails
to meet Fed. R. Civ. P. 59(e)’s reconsideration standards. At most, she concludes,
they can pursue protective orders, not another stay. Doc. 40 at 1-7.
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Defendant Nicolou’s conduct went well beyond a “misdiagnosis” of
Davison’s condition. As alleged in the amended complaint and
addressed in Plaintiff’s other briefing (Doc. 39 at 8-17, 21-22),
Davison displayed multiple signs of an acute medical emergency.
For example, on January 21, 2015, Davison made two visits to the
medical unit. (Doc. 14 ¶¶ 30-51.) At the time of the second visit,
Davison had constant chest pain, difficulty breathing, pain
aggravated by movement and inhalation, and redness and
inflammation over his upper torso, among other things. (Doc. 14
¶¶ 41-42.) Even a layperson would seek emergency medical
attention for symptoms like these, and a nurse related those
symptoms to Nicolou. (Doc. 14 ¶ 43.) But Nicolou -- not a
layperson, but a trained medical professional -- “refused to examine
Mr. Davison” despite having “knowledge of Mr. Davison’s condition,
the obvious signs of infection and impending sepsis, and Mr.
Davison’s repeated requests for medical assistance.” (Doc. 14 ¶ 45.)
Instead, Nicolou came out of his office and told Davison that he
would not see him again. (Doc. 14 ¶ 48.) Two days later, Davison,
displaying the same symptoms and experiencing “constant,
unremitting pain” (Doc. 14 ¶ 53), again visited the medical unit, and
his symptoms were again communicated to Nicolou (Doc. 14 ¶ 54).
As before, Nicolou refused to see Davison, treat him, or notify a
physician. (Doc. 14 ¶¶ 54-56.) He took this course of action
knowing that if Davison was not seen that day, no one would be
available to examine him for three days. (Doc. 14 ¶ 19.)
Doc. 40 at 8-9.
In taking a “preliminary peek” 3 at the Amended Complaint as it
stands against the latest dismissal motion, the Court agrees that Cindy
has pled enough deliberate-indifference facts against Nicolou to warrant
3

“When a party seeks a stay pending resolution of a motion to dismiss, a court must
take a preliminary peek at a dispositive motion to assess the likelihood that the motion
will be granted.” Sams v. GA West Gate, LLC , 2016 WL 3339764 at * 6 (S.D. Ga. June
10, 2016) (quotes and cites omitted).
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continuation of discovery while the motion to dismiss pends.
Cindy argues the same result for defendant Anthony:
Davison informed Anthony “that he had been ill for days, that he
was in constant pain, that he was having trouble walking and
breathing, and that his arm, chest, and neck were purplish red,”
and Anthony “personally observed Mr. Davison manifest” those
symptoms. (Doc. 14 ¶¶ 58-59.) Anthony knew “that there was
a serious risk of harm to Mr. Davison if he did not receive medical
treatment,” but Anthony did not “take any steps” to respond to
Davison’s obvious need for medical care. (Doc. 14 ¶ 60.)
Instead, knowing that his actions would prevent Davison from
seeing a medical provider for the next three days, Anthony
punished Davison by placing him in an isolation cell for hours
before returning Davison to his dormitory. (Doc. 14 ¶ 61.)
That Anthony heard Davison verbally complaining to a nurse
“about the failure to treat his condition” (Doc. 14 ¶ 58) does not
establish that Anthony was aware of a “treatment decision by a
medical professional” (Doc. 36-1 at 5). At most, it establishes
that Anthony knew that Davison was having problems accessing
medical care -- a problem that Anthony could have addressed by
exercising his authority “to summon medical assistance for a
prisoner who was in need of medical treatment.” (Doc. 14 ¶ 59.)
Doc. 40 at 10-11 (emphasis added).
The Court has reviewed the Amended Complaint and concurs with
Cindy’s summary. She pleads that any lay person would act on a “color
purple” level infection, especially when suffered by a visibly struggling
inmate. Doc. 14 ¶¶ 61-62. Of course, this is a closer call than in
Nicolou’s case. Anthony, after all, was a guard who (under the facts pled)

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saw more knowledgeable staff decline further treatment. Yet, even lay
people know that purple-level infection translates into a medical fire to be
promptly put out; that’s not done by placing the victim in solitary
confinement.
But again, the motion to dismiss -- and thus, whether Cindy has
stated a claim against Anthony -- remains before the district judge. The
only determination to be made at this juncture is whether the claim is so
weak that a discovery stay should be granted. The “preliminary peek”
made here counsels against a stay.

III. CONCLUSION
The Court DENIES the defendants’ second motion to stay. Doc.
36. The parties shall continue to litigate this case while the district judge
considers the current dismissal motion.

SO ORDERED , this 5th day of October, 2016.

UNITED STATES MAGISTRATE JUDGE

SOUTF1IEIN DISTRICT OF GEORGIA

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