BALLOU v. MEADOWS REGIONAL MEDICAL CENTER

Filing 13

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this case re 1 Complaint, filed Curtis Ray Ballou, DENY Plaintiff leave to appeal in forma pauperis, DIRECT the Clerk to enter the appropriate judgment of dismissal and CLOSE 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. (Objections to R&R due by 10/24/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/10/2017. (ca)

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

CURTIS RAY BALLOU,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-121

v.
MEADOWS REGIONAL MEDICAL
CENTER,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff has submitted a Complaint brought pursuant to 42 U.S.C. § 1983. (Doc. 1.)
Concurrent with his Complaint, Plaintiff filed a Motion to proceed in forma pauperis. (Doc. 2.)
For the numerous reasons set forth below, the Court DENIES Plaintiff’s Motion to proceed in
forma pauperis, and I recommend that the Court DISMISS this action, DENY Plaintiff leave to
appeal in forma pauperis, and DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and CLOSE this case.
PLAINTIFF’S ALLEGATIONS
Plaintiff, an inmate at Augusta State Medical Prison in Grovetown, Georgia, filed this
action on August 9, 2017.

(Doc. 1.)

Plaintiff names Meadows Regional Medical Center

(“Meadows Regional”) as the sole Defendant in this case. He contends that in July of 2015,
while in the custody of the Georgia Department of Corrections, he was admitted to Meadows
Regional for stomach surgery. (Id. at p. 5.) He contends that the “the surgery team” left a
syringe cap in his stomach. Id. He states that this object caused him to suffer severe pain for
several days and that the cap was eventually identified on a radiology report by other physicians.

Id. Though Plaintiff’s Complaint is not clear, it appears that he was returned to Meadows
Regional and the hospital was “forced to repete [sic] surgery.” (Id. at p. 4.)
STANDARD OF REVIEW
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
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)).

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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)).
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.

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DISCUSSION
I.

Dismissal Under Section 1915(g)
A.

Plaintiff has Three Strikes

As explained above, a prisoner proceeding in a civil action against officers or employees
of government entities must comply with the mandates of the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915. 28 U.S.C. § 1915(g) of the PLRA provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Furthermore, dismissals for providing false filing-history information and
failing to comply with court orders both fall under the category of “abuse of the judicial
process,” which the Court of Appeals for the Eleventh Circuit has held to be a “strike-worthy”
form of dismissal under § 1915(g). See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998),
abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 214, (2007); Malautea v. Suzuki
Motor Co., 987 F.2d 1536, 1544 (11th Cir. 1993) (characterizing failure to comply with court
orders as “abuse of the judicial process”). In Rivera, the Eleventh Circuit explained that “[a]
claim that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to
state a claim upon which relief may be granted.” 144 F.3d at 731. Therefore, this Court and
others frequently find that a dismissal for failure to exhaust administrative remedies counts as a
“strike” under Section 1915(g). See, e.g., Gibbs v. Georgia Dep’t of Corr., No. CV 316-055,
2016 WL 3996717, at *1 (S.D. Ga. July 22, 2016); Bey v. Kolodezji, No. 3:15CV387/RV/CJK,

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2016 WL 4136521, at *1 (N.D. Fla. June 14, 2016), report and recommendation adopted, No.
3:15CV387/RV/CJK, 2016 WL 4111330 (N.D. Fla. July 29, 2016).
Section 1915(g) “requires frequent filer prisoners to prepay the entire filing fee before
federal courts may consider their lawsuits and appeals.” Rivera, 144 F.3d at 731. The Eleventh
Circuit upheld the constitutionality of Section 1915(g) in Rivera.

In so doing, the Court

concluded that Section 1915(g) does not violate the doctrine of separation of powers, nor does it
violate an inmate’s rights to access to the courts, to due process of law, or to equal protection.
Rivera, 144 F.3d at 721–27.
A review of Plaintiff=s history of filings reveals that he has brought numerous civil
actions or appeals which were dismissed and appear to count as strikes under Section 1915(g). A
list of these cases includes the following:
•

Order, Ballou v. Geo Group Inc., No. 11-14084-A (11th Cir. May 11, 2012), ECF
No. 36 (dismissal of appeal as frivolous);

•

Order, Ballou v. Bryson et al., No. 6:15-cv-125 (S.D. Ga. April 28, 2016), ECF
No. 15 (dismissal for failure to exhaust administrative remedies);

•

Order, Ballou v. Owen et al., No. 1:14-cv-202 (S.D. Ga. April 7, 2015), ECF No.
20 (dismissal for abuse of process and failure to follow court orders);

•

Order, Ballou v. Barber, No. 7:12-cv-31 (M.D. Ga. Nov. 7, 2012), ECF No. 35
(dismissal for failure to exhaust administrative remedies);

•

Order, Ballou v. Atlanta Medical Center, No. 1:10-cv-02959 (N.D. Ga. Oct. 25,
2011), ECF No. 27 (dismissal for failure to follow court order);

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Consequently, Plaintiff may not proceed in forma pauperis in this action unless he can
demonstrate that he meets the “imminent danger of serious physical injury” exception to Section
1915(g).
B.

Plaintiff Does Not Qualify for the “Imminent Danger” Exception

“In order to come within the imminent danger exception, the Eleventh Circuit requires
‘specific allegations of present imminent danger that may result in serious physical harm.’”
Odum v. Bryan Cty. Judicial Circuit, No. CV407-181, 2008 WL 766661, at *1 (S.D. Ga. Mar.
20, 2008) (quoting Skillern v. Jackson, No. CV606-49, 2006 WL 1687752, at *2 (S.D. Ga. June
14, 2006) (citing Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004))). General and
conclusory allegations not grounded in specific facts indicating that injury is imminent cannot
invoke the Section 1915(g) exception.

Margiotti v. Nichols, No. CV306-113, 2006 WL

1174350, at *2 (N.D. Fla. May 2, 2006). “Additionally, ‘it is clear that a prisoner cannot create
the imminent danger so as to escape the three strikes provision of the PLRA.’” Ball v. Allen,
No. 06-0496, 2007 WL 484547, at *2 (S.D. Ala. Feb. 8, 2007) (citing Muhammad v.
McDonough, No. CV306-527-J-32, 2006 WL 1640128, at *1 (M.D. Fla. June 9, 2006)).
Plaintiff’s complaint contains no indication that he is in imminent danger of serious physical
harm. While he claims that Meadows Regional’s negligence lead to pain following his surgery,
he does not allege that he still experiences pain; he appears to allege that Meadows Regional
remedied their negligence by performing the surgery again, and he makes no claim of a current
serious medical need for which he is not receiving treatment.
Thus, Plaintiff’s status as a “three-striker” under Section 1915(g) provides sufficient
grounds for the Court to deny him leave to proceed in forma pauperis and to DISMISS this case.

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II.

Dismissal for Abuse of Judicial Process
The complaint form that Plaintiff used to file his Complaint asks several questions

regarding his history of filing of lawsuits. While Plaintiff acknowledged that he filed lawsuits,
he failed to fully answer serval questions regarding those lawsuits. Moreover, Plaintiff stated
that he had never filed any appeals, which is not true. (Doc. 1, p. 3.)

The case management

system, as outlined above, shows that Plaintiff is a prolific litigant who has brought several
previous actions and appeals while incarcerated. See R. & R., Ballou v. Owen, No. 1:14-cv202, 2015 WL 1607983, at *3 (S.D. Ga. Apr. 7, 2015) (recommending dismissal of Plaintiff’s
complaint for failure to disclose numerous prior lawsuits and noting that plaintiff had filed
several lawsuits and that one of his appeals had been dismissed as frivolous).
As previously stated, Section 1915 requires a court to dismiss a prisoner’s action if, at
any time, the court determines that it is frivolous or malicious, fails to state a claim, or seeks
relief from an immune defendant. 28 U.S.C. § 1915(e)(2)(B). Significantly, “[a] finding that the
plaintiff engaged in bad faith litigiousness or manipulative tactics warrants dismissal” under
Section 1915. Redmon v. Lake Cty. Sheriff’s Office, 414 F. App’x 221, 225 (11th Cir. 2011)
(alteration in original) (quoting Attwood v. Singletary, 105 F.3d 610, 613 (11th Cir. 1997)). In
addition, Federal Rule of Civil Procedure 11(c) permits a court to impose sanctions, including
dismissal, for “knowingly fil[ing] a pleading that contains false contentions.” Id. at 225–26
(citing Fed. R. Civ. P. 11(c)). Again, although pro se pleadings are to be construed liberally, “a
plaintiff’s pro se status will not excuse mistakes regarding procedural rules.” Id. at 226.
Relying on this authority, the Eleventh Circuit has consistently upheld the dismissal of
cases where a pro se prisoner plaintiff has failed to disclose his previous lawsuits as required on
the face of the Section 1983 complaint form. See, e.g., Redmon, 414 F. App’x at 226 (pro se

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prisoner’s nondisclosure of prior litigation in Section 1983 complaint amounted to abuse of
judicial process resulting in sanction of dismissal); Shelton v. Rohrs, 406 F. App’x 340, 341
(11th Cir. 2010) (same); Young v. Sec’y Fla. for Dep’t of Corr., 380 F. App’x 939, 941 (11th
Cir. 2010) (same); Hood v. Tompkins, 197 F. App’x 818, 819 (11th Cir. 2006) (same). Even
where the prisoner has later provided an explanation for his lack of candor, the Court has
generally rejected the proffered reason as unpersuasive. See, e.g., Redmon, 414 F. App’x at 226
(“The district court did not abuse its discretion in concluding that Plaintiff’s explanation for his
failure to disclose the Colorado lawsuit—that he misunderstood the form—did not excuse the
misrepresentation and that dismissal was a proper sanction.”); Shelton, 406 F. App’x at 341
(“Even if [the plaintiff] did not have access to his materials, he would have known that he filed
multiple previous lawsuits.”); Young, 380 F. App’x at 941 (finding that not having documents
concerning prior litigation and not being able to pay for copies of same did not absolve prisoner
plaintiff “of the requirement of disclosing, at a minimum, all of the information that was known
to him”); Hood, 197 F. App’x at 819 (“The objections were considered, but the district court was
correct to conclude that to allow [the plaintiff] to then acknowledge what he should have
disclosed earlier would serve to overlook his abuse of the judicial process.”).
Another district court in this Circuit recently explained the importance of this information
as follows:
[t]he inquiry concerning a prisoner’s prior lawsuits is not a matter of idle
curiosity, nor is it an effort to raise meaningless obstacles to a prisoner’s access to
the courts. Rather, the existence of prior litigation initiated by a prisoner is
required in order for the Court to apply 28 U.S.C. § 1915(g) (the “three strikes
rule” applicable to prisoners proceeding in forma pauperis). Additionally, it has
been the Court’s experience that a significant number of prisoner filings raise
claims or issues that have already been decided adversely to the prisoner in prior
litigation. . . . Identification of prior litigation frequently enables the Court to
dispose of successive cases without further expenditure of finite judicial
resources.

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Brown v. Saintavil, No. 2:14-CV-599-FTM-29, 2014 WL 5780180, at *3 (M.D. Fla. Nov. 5,
2014) (emphasis omitted).
Plaintiff misrepresented his prolific litigation history in his Complaint.

The plain

language of the standard complaint form is clear—asking whether Plaintiff “ever filed any
lawsuit while incarcerated or detained.” (Doc. 1, p. 2.) Thus, regardless of the outcome of
Plaintiff’s prior lawsuits, his initiation of those lawsuits is the precise type of activity for which
this prompt requires disclosure. Plaintiff failed to fully disclose the information requested about
his prior lawsuits and appeals. This constitutes a lack of candor that will not be tolerated in this
Court. Plaintiff attempts to explain away his lack of candor by stating that he does not have full
records regarding his past cases. (Id.) However, Plaintiff did not make any real effort to
describe his cases and he stated that he had not filed any appeals, which is blatantly untrue.
Plaintiff’s failure to truthfully disclose his litigation history is particularly galling given that this
Court previously dismissed one of his prior lawsuits for the same dishonesty. See R. & R.,
Ballou v. Owen, No. 1:14-cv-202, 2015 WL 1607983, at *3 (S.D. Ga. Apr. 7, 2015). Therefore,
Plaintiff’s abuse of judicial process provides further grounds for the Court to deny him leave to
proceed in forma pauperis and to DISMISS this case.
III.

Dismissal for Failure to State a Claim
Even if Plaintiff were not a three striker and had truthfully answered the questions on the

Complaint form, the Court would still have grounds to dismiss his Complaint. In order to state a
claim for relief under Section 1983, a plaintiff must satisfy two elements. First, a plaintiff must
allege that an act or omission deprived him “of some right, privilege, or immunity secured by the
Constitution or laws of the United States.” Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th
Cir. 1995). Second, a plaintiff must allege that the act or omission was committed by “a person

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acting under color of state law.” Id. Moreover, the Eleventh Circuit has stated that the district
courts are not required to “sift through the facts presented and decide for itself which were
material to the particular cause of action asserted.” Beckwith v. Bellsouth Telecomms. Inc., 146
F. App’x 368, 372 (11th Cir. 2005) (quoting Strategic Income Fund, LLC v. Spear, Leeds &
Kellogg Corp., 305 F.3d 1293, 1295 n.9 (11th Cir. 2002) (citations omitted)).
Pretermitting the question of whether Meadows Regional qualifies as person acting under
color of state law, 1 Plaintiff has failed to levy sufficient allegations to hold the hospital liable for
the actions of the “surgery team.” Section 1983 liability must be based on something more than
a defendant’s supervisory position or 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 supervisory defendant may be liable only through personal participation
in the alleged constitutional violation or when there is a causal connection between the
defendant’s conduct and the alleged violations.

Id. at 802.

“To state a claim against a

supervisory defendant, the plaintiff must allege (1) the supervisor’s personal involvement in the
violation of his constitutional rights, (2) the existence of a custom or policy that resulted in
deliberate indifference to the plaintiff’s constitutional rights, (3) facts supporting an inference
that the supervisor directed the unlawful action or knowingly failed to prevent it, or (4) a history
of widespread abuse that put the supervisor on notice of an alleged deprivation that he then failed
to correct.” Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011). Moreover, an entity such as
1

The Supreme Court of the United States has held that a physician, employed by the state to provide
medical services to state prison inmates, acts under color of state law for purposes of Section 1983
because “[u]nder state law, the only medical care [the inmate] could receive for his injury was that
provided by the State,” even though the physician was employed pursuant to a contract that “did not
require him to work exclusively for the prison.” West v. Atkins, 487 U.S. 42, 54–56 (1988); see also
Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985) (finding state action under the
public function test where an entity contracted with the county to provide medical care to persons housed
at the county jail).

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Meadows Regional cannot be held liable under Section 1983 simply because it employs a
tortfeasor. Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978). The principle that
respondeat superior is not a cognizable theory of liability under Section 1983 holds true
regardless of whether the entity sued is a state, municipal, or private corporation. Harvey v.
Harvey, 949 F.2d 1127, 1129-30 (11th Cir. 1992) (extending Monell rationale to private mental
health hospital).
It appears Plaintiff wishes to hold Meadows Regional liable based solely on its position
as the employer or overseer of the surgery team. He does not allege that Meadows Regional had
a policy or custom that led to the violation of his constitutional rights or that there was a
widespread history of abuse that should have placed Meadows Reginal on notice. Consequently,
Plaintiff has not established that Meadows Regional had any involvement in the violation of
Plaintiff’s constitutional rights or that there is any causal connection between its conduct and the
violation.

Therefore, he has failed to state a viable Section 1983 claim against Meadows

Regional.
IV.

Denial of Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not take in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
2

A certificate of appealability is not required in this Section 1983 action.
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claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action
is frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Procced in Forma
Pauperis, and I RECOMMEND that the Court DISMISS this case, DENY Plaintiff leave to
appeal in forma pauperis, DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and CLOSE 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
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.

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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 Plaintiff.
SO ORDERED, this 10th day of October, 2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE

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