West v. Winchell

Filing 20

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 , 4 claims, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff in forma p auperis status on appeal. 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 9/4/2019). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge Benjamin W. Cheesbro on 8/21/2019. (csr)

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

BRIAN WEST,
Plaintiff,

CIVIL ACTION NO.: 6:18-cv-55

v.
DR. MARK WINCHELL,
Defendant.

ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently incarcerated at Georgia State Prison in Reidsville, Georgia, filed this
42 U.S.C. § 1983 Complaint, as amended, concerning certain medical care he received while
incarcerated. Doc. 4. Plaintiff also filed two Motions for Help to Meet Service Requirements.
Docs. 10, 14. The Court now conducts the requisite screening of Plaintiff’s Amended
Complaint and supplements. 28 U.S.C. §1915A. For the reasons which follow, I
RECOMMEND the Court DISMISS without prejudice Plaintiff’s claims, DIRECT the Clerk
of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY
Plaintiff in forma pauperis status on appeal. I DENY as moot Plaintiff’s Motions for Help to
Meet Service Requirements. Docs. 10, 14.
BACKGROUND
Plaintiff filed his initial Complaint and numerous medical records on April 30, 2018, doc.
1, and filed an Amended Complaint as a matter of right on May 15, 2018, doc. 4, which
incorporates many of the attachments to the original Complaint. 1 Plaintiff’s claims arise from a

1

The facts in this section are drawn from Plaintiff’s Amended Complaint. Doc. 5. See Fritz v.
Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356, 1358 (11th Cir. 1982) (“Under the Federal

shoulder manipulation procedure Defendant performed on August 23, 2016 and follow-up care
Defendant provided after that procedure. Plaintiff states the procedure and follow-up care
caused him permanent muscle damage, disfigurement, weakness, and pain in his left shoulder
area. Doc. 4 at 7. Plaintiff asserts a claim for deliberate indifference under § 1983 as well as
state-law claims of negligence and battery.
Specifically, Plaintiff contends Defendant Winchell, a private orthopedic surgeon under
contract with the Georgia Department of Corrections, initially performed surgery on his left
rotator cuff on April 12, 2016 at Georgia State Prison. Id. at 1, 2. Subsequent to this operation,
Plaintiff developed a “frozen shoulder” due to insufficient physical therapy, and Defendant told
Plaintiff that he needed to undergo a shoulder manipulation to fix this issue. Id. At that point,
Plaintiff claims his shoulder did not have any significant impairments, aside from a slight loss of
motion and a little pain. Id.
Plaintiff consented to a “left shoulder manipulation” and went in for that procedure on
August 23, 2016. Id. at 2–6. Upon arrival, Plaintiff was told by medical personnel that Dr.
Winchell was going to conduct the manipulation by hand and that no equipment would be
utilized for the procedure. Id. Prior to being sedated, Plaintiff saw “a heavy looking piece of
black medical equipment sitting [on the operating table].” Id. Plaintiff asserts that Defendant
used this medical equipment during the manipulation without Plaintiff’s consent. Id. Plaintiff
awoke following the manipulation and was told by medical personnel that Defendant broke up
“adhesive capsulitis” in his shoulder. Id. at 3. At this point, Plaintiff was in “extreme pain”
and was taken back to his cell without any pain medication or follow-up treatment. Id. After
the procedure and while back in his cell, Plaintiff removed his jumpsuit and observed that his

Rules, an amended complaint supersedes the original complaint.”).
2

shoulder and elbow were swollen, that his left shoulder muscles were “completely gone,” and
that his left arm hung approximately an inch lower than his right arm. Id.
Plaintiff was still in extreme pain when he next saw Defendant on August 30, 2016 for a
follow up, and the abnormalities in his arm were still present. Id. When Plaintiff told
Defendant of his injuries, Defendant responded, “[Y]ou’re such a big baby, if you don’t work
your shoulder you’re going to have a frozen shoulder the rest of your life, work your shoulder
until you start therapy.” Id. Plaintiff further states Defendant did not physically examine
Plaintiff during this follow-up appointment. Id. Plaintiff alleges Defendant refused to treat his
swelling or attenuated arm or his subsequent pain and only recommended physical therapy to
Plaintiff. Id. at 4. Plaintiff further alleges Defendant misrepresented that Plaintiff had full
range of motion following his August 23, 2016 adjustment in Plaintiff’s medical records. Id.
Plaintiff pursued physical therapy but had continued pain and limited motion in his
shoulder, worse than what was present prior to his manipulation. Id. at 4–5. On October 18,
2016, Plaintiff returned to Dr. Winchell, who stated Plaintiff was not effectively working his
shoulder to avoid atrophy, and warned that Plaintiff would have a frozen shoulder for the rest of
his life without adequately working the shoulder. Id. at 5. Plaintiff informed Dr. Winchell that
his shoulder was not frozen, but he believed something was out of place, and he requested an
MRI. Dr. Winchell rejected Plaintiff’s request for an MRI, concluding an MRI was not
necessary, but ordered an electromyogram (“EMG”) on Plaintiff’s shoulder. Plaintiff underwent
an EMG on December 27, 2016 and visited Defendant on February 14, 2017 to go over the
results of that test. Id. Defendant stated that Plaintiff’s injuries came from nerve damage in his
neck as a result of not properly working his shoulder following the manipulation. Id. at 6.

3

Plaintiff grieved Defendant’s refusal to order an MRI, but his grievance was denied. Id.
at 7. Plaintiff saw a different doctor on May 1, 2017 at Augusta State Medical Prison who told
Plaintiff that he had dead muscles in his neck and ordered an MRI on that area. Id. Plaintiff
did not consent to the MRI on his neck because he did not believe his neck was connected with
the symptoms he was experiencing. Id. Plaintiff contends that, as of the day he filed his
Complaint, he had continued lack of motion in his shoulder and numbness and tingling in his left
hand and that his clavicle, scapula, and shoulder were out of place. Id.
Plaintiff contends Defendant was deliberately indifferent to Plaintiff’s serious medical
needs following his surgery, in violation of Plaintiff’s Eighth Amendment rights. Id. at 8.
Plaintiff further contends Defendant’s unauthorized use of medical equipment during his
procedure constitutes a battery under state law and that Defendant was negligent by breaching
his duty of care to Plaintiff during the manipulation. Id. Plaintiff sues Defendant in his
individual and official capacities, id. at 1, and requests declaratory and injunctive relief along
with compensatory, punitive, and nominal damages, id. at 9. Plaintiff also seeks to effectuate
service under the Georgia Tort Claims Act. O.C.G.A. § 50-21-26.
STANDARD OF REVIEW
Plaintiff brings this action in forma pauperis. Doc. 5. Pursuant to 28 U.S.C. § 1915A,
the Court must review a complaint in which a prisoner seeks redress from a governmental entity
or the employee of a governmental entity. Upon such screening, the Court must dismiss a
complaint, or any portion thereof, that is frivolous, malicious, 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).

4

The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a Complaint on an application to proceed in forma pauperis. 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 § 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 § 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.

5

Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys. . . .” (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.”).
DISCUSSION
Plaintiff asserts a claim for deliberate indifference in violation of the Eighth Amendment
to the United States Constitution under § 1983 as well as state-law claims of negligence and
battery. Doc. 4 at 8.
I.

Eighth Amendment Deliberate Indifference Claim
Plaintiff asserts Defendant was deliberately indifferent to Plaintiff’s serious medical

needs in the course of performing the August 23, 2016 shoulder manipulation and during followup care after that procedure. Id. Plaintiff asserts this claim under § 1983 and alleges
Defendant’s conduct violated the Eighth Amendment to the Constitution.2
The standard for cruel and unusual punishment in the medical care context, 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

2

Plaintiff asserts his deliberate indifference claim against Defendant in his official and individual
capacity. Doc. 4 at 1. As explained below, Plaintiff fails to state a cognizable deliberate indifference
claim against Defendant, regardless of whether that claim is asserted against Defendant in his official or
individual capacity. The Court notes, however, that even if Plaintiff’s claim were cognizable, any claim
against Defendant in his official capacity for money damages should be dismissed under the Eleventh
Amendment. A suit against a state actor in his official capacity is effectively a suit against the state
itself, and the state is immune from such suits under the Eleventh Amendment. Alden v. Maine, 527
U.S. 706, 712–13 (1999); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989).
6

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, “a
prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle, 429 U.S. at 106. In order to prevail on a deliberate
indifference claim under the Eighth Amendment, a prisoner must show three elements: (1) an
objectively serious medical need; (2) a defendant’s subjective, deliberate indifference to that
need; and (3) an injury caused by the defendant’s indifference. Goebert v. Lee County, 510
F.3d 1312, 1326 (11th Cir. 2007).
“Mere negligence in diagnosing or treating a medical condition is an insufficient basis for
grounding liability on a claim of medical mistreatment under the Eighth Amendment.” Adams
v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995). “Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.
Additionally, “it is well established that a difference in opinion or a disagreement between an
inmate and prison officials as to what medical care is appropriate for his particular condition
does not state a claim for deliberate indifference to medical needs.” John v. Cochran, Civil
Action No. 13-0001, 2013 WL 5755189, at *9 (S.D. Ala. Oct. 22, 2013). “The question of
whether governmental actors should have employed additional diagnostic techniques or forms of
treatment ‘is a classic example of a matter for medical judgment’ and therefore not an
appropriate basis for grounding liability under the Eighth Amendment.” Owen v. Corizon
Health Inc., 703 F. App’x 844, 849 (11th Cir. 2017) (int. cits. omitted) (citing Adams v. Poag, 61
F.3d 1537, 1545 (11th Cir. 1995)). “However, “medical treatment so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness

7

constitutes deliberate indifference.” Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)
(internal quotations omitted).
Here, Plaintiff asserts Defendant was deliberately indifferent to Plaintiff’s serious
medical needs on two factual bases: (1) Defendant utilized a piece medical equipment during the
shoulder manipulation while Plaintiff was under anesthesia and after Plaintiff was informed by
medical staff that Defendant would only be using his hands; and (2) Defendant failed to provide
adequate follow-up care after the shoulder manipulation. Plaintiff’s claims, as pleaded, are
medical malpractice claims or simply disagreements with Defendant over Plaintiff’s diagnosis
and treatment; the conducted alleged does not give rise to a claim of deliberate indifference
under the Eighth Amendment.
Regarding Defendant’s use of a medical device during the shoulder manipulation,
Plaintiff contends he is sure that Defendant used an unknown medical device during the shoulder
manipulation because of the negative results of the procedure, though he does not know what
sort of device was used, and the medical records do not demonstrate that any device was used.
Even if Plaintiff’s speculation about the use of medical device were proven to be true, the alleged
use of this device does not, on its own, constitute a violation of Plaintiff’s Eighth Amendment
rights. 3 Plaintiff ostensibly argues that the device should not have been used at all or was used
improperly. The form of treatment utilized by a medical provider is “is a classic example of a
matter for medical judgment” and cannot support liability under the Eighth Amendment.
Adams, 61 F.3d 1537, 1545 (11th Cir. 1995) (quoting Estelle, 429 U.S. at 107). And whether
the device was used properly is, at most, a question of whether Defendant acted negligently. Id.

3

Plaintiff alleges he did not consent to the use of unknown device, though he provides a copy of a
consent form he signed in connection with the procedure. Doc. 1-2 at 20. The issue of the scope of
Plaintiff’s consent is not germane to the Court’s deliberate indifference analysis in this Report and
Recommendation.
8

at 1543 (“Mere negligence in diagnosing or treating a medical condition is an insufficient basis
for grounding liability on a claim of medical mistreatment under the Eighth Amendment.”).
While Plaintiff may strongly disagree with the use of a device during his should manipulation or
may suggest the device was used improperly, such allegations are not sufficient for stating a
claim of deliberate indifference under the Eighth Amendment.
Regarding Plaintiff’s follow-up care, Plaintiff alleges he returned to Defendant seven
days after the manipulation of his left shoulder and, at that time, Plaintiff was in extreme pain,
his arm was attenuated, he still had some swelling, and there was a length difference in his arms.
Doc. 4 at 3. Defendant responded to Plaintiff’s complaints by telling him “you’re such a big
baby” and instructing him to work his shoulder until he started physical therapy. Id. Defendant
did not physically examine Plaintiff’s shoulder or arm during that visit. Id. Plaintiff indicates
this was because the injuries were too “fresh” to be examined. Id. Plaintiff visited Defendant
twice more, once on October 18, 2016 and again on February 14, 2017. Id. at 5. On the first
occasion, Defendant told Plaintiff that he would have a frozen shoulder for the rest of his life
because he had not properly worked out his shoulder. Id. Defendant then ordered Plaintiff an
EMG but rejected Plaintiff’s request for an MRI as unnecessary. Id. Defendant reviewed the
EMG with Plaintiff in February of 2017 and told Plaintiff that he had dead muscle in his
shoulder arising from nerve damage in his back, which Defendant determined resulted from
Plaintiff’s failure to properly exercise the shoulder following the initial surgery. Id. at 5–6.
Plaintiff then saw another physician who ordered an MRI on Plaintiff’s neck, which Plaintiff
refused. Id. at 7.
Plaintiff fails to allege Defendant was deliberately indifferent to a serious medical need
during the follow-up care. Plaintiff plausibly alleges he had a serious physical injury, but

9

Plaintiff fails to allege Defendant was deliberately indifferent to that need. Plaintiff alleges he
presented an injury Defendant knew was serious, and that Defendant “purposely ignored
[Plaintiff’s] pains.” Id. at 8. However, Plaintiff’s factual allegations contradict this conclusory
statement. Plaintiff’s allegations show he received regular and frequent follow-up care from
Defendant, and during those visits, Defendant consistently recommended a course of treatment,
including physical therapy and ordering an EMG on Plaintiff’s neck. These allegations do not
show that Defendant’s treatment “was so cursory as to amount to no care at all.” McElligott v.
Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) (denying summary judgment to physician
defendants who prescribed only Tylenol and Pepto-Bismol to a prisoner plaintiff who presented
with multiple cancer symptoms including extreme pain and severe weight loss over an extended
period of time). Defendant’s “you’re such a big baby” comment may have been overly harsh
and uncompassionate, but it does not demonstrate Defendant was indifferent to Plaintiff’s
medical needs. Indeed, the statement was made in the course of Defendant warning Plaintiff
about the importance of following Defendant’s recommended course of treatment.
As with the first ground, Plaintiff’s second factual basis for his claim is a simply a
disagreement with Defendant’s diagnosis and treatment, which is a “classic example of a matter
for medical judgment” and not an appropriate basis for grounding liability under the Eighth
Amendment.” Adams, 61 F.3d at 1545. At most, Plaintiff has alleged Defendant was
negligent, but that also is insufficient to state a claim for deliberate indifference. Id. Plaintiff
has not alleged any treatment by Defendant that was “so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to fundamental fairness constitutes
deliberate indifference.” Waldrop, 871 F.2d at 1033 (internal quotations omitted). Therefore,
Plaintiff has failed to state a claim for deliberate indifference.

10

Accordingly, I RECOMMEND the Court DISMISS without prejudice Plaintiff’s claim
for deliberate indifference against Defendant.
II.

State Law Claims
Plaintiff also asserts state law tort claims of battery and negligence against Defendant

Winchell. Doc. 4 at 1. Plaintiff argues that this Court has supplemental jurisdiction over his
state law claims, but the Court may decline to exercise supplemental jurisdiction over state law
claims where “the district court has dismissed all claims over which it has original
jurisdiction[.]” 28 U.S.C. § 1367(c)(3). Because I recommend the Court dismiss Plaintiff’s
only claim arising under federal law, I further RECOMMEND the Court decline to exercise
supplemental jurisdiction over Plaintiff’s remaining state law claims and DISMISS without
prejudice those remaining claims.
III.

Plaintiff’s Pending Motions
Plaintiff filed two Motions for Help to Perfect Service under the Georgia Tort Claims Act

in this action seeking assistance with service from the Court. Given the Court’s need to conduct
frivolity review before service in this case, Plaintiff’s Motions are premature. Moreover,
because I am recommending the dismissal of Plaintiff’s claims, Plaintiff’s Motions are now
moot. Therefore, I DENY as moot Plaintiff’s Motions for Help to Perfect Service under the
Georgia Tort Claims Act. Docs. 10, 14.
IV.

Leave to Appeal in Forma Pauperis
Should the Court adopt my recommendation that Plaintiff’s claims be dismissed, the

Court should also deny Plaintiff leave to appeal in forma pauperis as to the dismissed claims. 4
Though Plaintiff has not yet filed a notice of appeal, it would be appropriate to address these

4

A certificate of appealability is not required in this § 1983 action.
11

issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not taken 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. County 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 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). An in forma pauperis action is frivolous
and 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 as to any dismissed claims.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DISMISS without prejudice
Plaintiff’s claims, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Plaintiff in forma pauperis status on appeal. I DENY as
moot Plaintiff’s Motions for Help to Meet Service Requirements. Docs. 10, 14. The Court
ORDERS any party seeking to object to this Report and Recommendation to file specific written
objections within 14 days of the date on which this Report and Recommendation is entered.

12

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, 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 Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 21st day of August,
2019.

____________________________________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

13