Hardy v. Georgia Department of Corrections et al, No. 1:2017cv00172 - Document 53 (S.D. Ga. 2019)
Court Description: ORDER granting in part and denying in part 43 Motion to Dismiss. The Clerk is directed to terminate Defendants Chatman, Burnside, and Gore as parties and any deadlines pertaining to them. The remaining Defendants shall file their answers to Plaintiff's Second Amended Complaint with in fourteen days of this Order. Signed by Chief Judge J. Randal Hall on 09/24/2019. (thb)
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Hardy v. Georgia Department of Corrections et al Doc. 53 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION GEORGE W. HARDY, * Plaintiff, * * V. * CV 117-172 A- GEORGIA DEPARTMENT CORRECTIONS, OF * et al. , * * Defendants. * ORDER Before the Court is Defendants' Partial Plaintiff's Second Amended Complaint. Motion {Doc. 43. ) to Dismiss For the reasons contained herein. Defendants' motion is GRANTED IN PART and DENIED IN PART. I. Defendants Richmond removed County, this Georgia. BACKGROUND matter (Doc. from the 1. ) Superior Subsequent to Court of removal. Plaintiff has amended his complaint twice, and his Second Amended Complaint (''Complaint") is the operative pleading. 42. ) 42 The Complaint alleges a federal cause of action pursuant to U.S.C. need (Compl., Doc. § 1983 (Count (Count II) ; I) for deliberate indifference to serious medical and state law claims for professional negligence negligence (Count III); negligent infliction of Dockets.Justia.com emotional distress (Count IV); and negligent hiring, retention, training, and supervision (Count V). further claims punitive damages.^ (Id. SISI 41-91.) Plaintiff (Id. at Prayer for Relief.) A. Confinement and Medical History Plaintiff is confined at the Georgia Diagnostic and Classification Prison (^^GDCP") in Jackson, Georgia, and was held at GDCP at all times except as otherwise stated. (Id. SI 17.) As a result of his history with cardiovascular disease and type II diabetes. Plaintiff is prescribed Plavix, a medication intended to prevent the formation of blood clots. it was determined salivary gland. (Id. SISI 18, 19.) that Plaintiff required surgery to In 2015, remove a (Id. SI 19.) B. Amputation On June 24, 2015, Plaintiff was transported to Augusta State Medical Prison (Id. SI 22.) C'ASMP") to undergo the salivary gland surgery. Prior to his surgery on July 2, 2015, Plaintiff noticed numbness in his right foot eventually leading to leg pain. (Id. SI 23.) Over more than two weeks following surgery. Plaintiff continued to experience leg pain and numbness.^ 28, 30-33, 35.) (Id. SISI 24, 26- After Plaintiff's return to GDCP, medical staff ^ Plaintiff generally requests punitive damages without specifying which claims entitle him to punitive damages. Although Defendants move to dismiss Plaintiff's claim for punitive damages in connection with the state law claims, Defendants do not make the same motion in regard to Plaintiff's Section 1983 claims. Therefore, the Court only addresses the punitive damages as they relate to the state law claims. 2 Plaintiff also contends he experienced chest pain on at least one occasion. (Compl., 132.) examined Plaintiff and discovered blood clots in his right leg and determined Plaintiff had contracted gangrene. (Id. SI 36.) Shortly thereafter, at the Atlanta Medical Center, Plaintiff's leg was amputated six inches above the knee. (Id. SI 37.) C. Personnel and Alleged Conduct Plaintiff alleges that the stoppage his Plavix prescription primarily caused the amputation. (See id. SISI 19-22, 25, 51-52, 55-56, 59-60, 70-71, 78, 87-88.) Plaintiff blames a host of entities and personnel for the loss of his leg. blood of clots, gangrene, and (See id. SISI 5-14.) For convenience, the Court discusses the alleged conduct of the various personnel in turn. 1. Edward Hale Burnside II, M.D. and Mary Gore, R.N. (GDCP)^ Nurse Gore prescription in ordered the suspension anticipation of of Plaintiff s Plaintiff s salivary Plavix gland surgery. (Id. SI 19.) Prior to his transfer and surgery. Plaintiff expressed concerns about the suspension of his prescription to Dr. Burnside. (Id. SI 20.) Dr. Burnside informed Plaintiff that he need not worry and ASMP would tend to his issues. (Id.) Plaintiff alleges that neither Nurse Gore nor Dr. Burnside attempted to notify ASMP of Plaintiffs prescription. (Id. SI 21.) Upon 3 Dr. Burnside, Nurse Gore, and Warden Chatman are collectively referred to as the "GDCP Individual Defendants." Plaintiff's post-operation return to GDCP, Dr. Burnside discovered the blood clots and diagnosed Plaintiff with gangrene. (Id. 5 36.) 2. Warden Bruce Chatman (GDCP) Plaintiff alleges that Warden Chatman failed in his duties to supervise personnel (id. 511 60, 61, 87, 89), train personnel (id. 55 61, 89), hire personnel (id. 55 61, 89), terminate personnel (id. 55 61, 89), and promulgate and enforce policies (id. 55 60, 63, 79, 87) at GDCP. 3. Wardens Stan Shepard and Betty Lee McGrew (ASMP) While under ASMP's care. Warden Shepard purportedly threatened to relocate Plaintiff for yelling out in pain. 5 29.) Plaintiff asserts Plaintiff's treatment. Additionally, Warden Shepard's warning (Id. impacted (Id. 5 62.) Plaintiff expressed McGrew on three occasions. his distress to (Id. 55 24, 26, 29.) Warden Plaintiff states that Warden McGrew was aware of Plaintiff s medical history, his prescription for Plavix, and the subsequent suspension of that prescription. (Id. 5 25.) Finally, Plaintiff makes the same allegations against Wardens Shepard and McGrew as those made against Warden Chatman. 55 60, 61, 64, 79, 87, 89.) (Id. 4. ASMP Medical Personnel"^ Plaintiff alleges that upon arriving at ASMP, he informed Dr. Kimberly Fountain of the fact that he was no longer taking Plavix, and his fears were ignored. (Id. ^ 22.) Further, Plaintiff asserts that throughout his time at ASMP, the tending medical staff was aware of Plaintiff's medical history, his prescription for Plavix, and the subsequent suspension of that prescription. SI 25.) (Id. Plaintiff notified ASMP medical staff of his numbness and pain on multiple occasions. (Id. SISI 23-24, 26-33.) In response, ASMP medical staff provided Plaintiff Percocet to assist with the pain (id. SISI 31-32) and warm compresses (id. SISI 26-27). medical staff problems. externally (Id. SI 33.) examined Plaintiff s leg ASMP finding no The treating staff at ASMP did not consult with other medical providers or perform scans of the leg. (Id. SISI 26, 34.) 5. All Individual Defendants Plaintiff contends that throughout Plaintiffs treatment, the Individual Defendants were aware that Plaintiff was prescribed Plavix for his history of cardiovascular and clotting issues. (Compl., SI 51.) Plaintiff continues that the Individual Defendants knew Plaintiff ceased taking Plavix prior to his surgery and refused to resume his Plavix treatment following his surgery ^ Wardens Shepard and McGrew and the ASMP medical staff alleged to have treated Plaintiff are collectively referred to as the "ASMP Individual Defendants," and collectively with the GDCP Individual Defendants, the "Individual Defendants." notwithstanding Finally, his despite Plaintiff s Plaintiff s numerous the medical Individual and medication complaints. Defendants' medication was (Id. suspended, history, and 51, knowledge awareness receipt of 53.) of that numerous complaints from Plaintiff regarding his discomfort, the Individual Defendants deprived Plaintiff of the medication and care for a possible clotting issue. (Id. SISI 51-53.) Pursuant to Federal Rule of Civil Procedure 12(b)(6) — failure to state a claim upon which relief can be granted — Defendant moves for partial dismissal of the Complaint on a number of grounds. The Court addresses the Parties' competing positions regarding dismissal herein. II. MOTION TO DISMISS STANDARD In considering a motion to dismiss under Rule 12(b)(6), the Court tests the legal sufficiency of the Complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis V. Scherer, 468 U.S. 183 (1984). Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant fair notice of both the claim and the supporting grounds. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 "detailed (2007). Although factual allegations" are not required. Rule 8 "demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombley, 550 U.S. at 555). ^'To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,^ to ^state a claim to relief that is plausible on its face.'" U.S. at 570). allows the Id. (quoting Twombly, 550 The plaintiff must plead ''factual content that court to draw the reasonable defendant is liable for the misconduct." inference Id. that the "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A plaintiff's pleading obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." at 555. Twombly, 550 U.S. "Nor does a complaint suffice if it tenders 'naked assertions' devoid of further factual enhancement.'" U.S. at 678 (quoting Twombly, 550 U.S. at 557). Iqbal, 556 Furthermore, "the court may dismiss a complaint pursuant to [Rule 12(b)(6)] when, on the basis of a dispositive issue of law, no' construction of the factual allegations will support the cause of action." Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). ^ The Court must accept all well-pleaded facts in the Complaint as true and construe all reasonable inferences therefrom in the light most favorable to the plaintiff. Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (llth Cir. 2006). III. DISCUSSION The Court begins with Plaintiff s federal claim — a violation of 42 U.S.C. § 1983 for deliberate indifference to serious medical need as protected by the Eighth Amendment of the United States Constitution. A. Section 1983 Deliberate Indifference to Serious Medical Need Count I Defendants argue that Plaintiffs Section 1983 claims should be dismissed as to all Defendants because (1) the Eleventh Amendment grants immunity to the Georgia Department of Corrections (^'GDC"), the Board of Regents of the University System of Georgia {''BOR"), and the Individual Defendants in their official capacities; (2) Plaintiff fails to state a claim for a Section 1983 violation; and (3) Defendants are entitled immunity in their individual capacities. to qualified (Br. Supp. Partial Mot. to Dismiss, Doc. 43-1, at 5-23.) 1. Eleventh Amendment Immunity Plaintiff brings the present action against two government agencies and the Individual Defendants in both their official and individual capacities. Defendants argue that Eleventh Amendment immunity bars Plaintiffs agencies and the capacities. (Id. Section Individual at 5.) 1983 claims Defendants Plaintiff does in not against their state official dispute that, generally, he may only assert a Section 1983 claim against the 8 Individual Defendants in their individual capacities. Partial Mot. to Dismiss, Doc. 45, at 5-6.) (Opp'n to Instead, Plaintiff argues that Defendants are not entitled to Eleventh Amendment protection for two reasons: (1) Plaintiff's Complaint asserts both federal and state law claims, and (2) The present action was initially filed in state court and removed to federal court. (Id.) The Court finds Amendment against neither immunity Defendant argument prohibits GDC, persuasive. Plaintiff's Defendant BOR, Thus, Section and Eleventh 1983 the claims Individual Defendants in their official capacities. The Eleventh Amendment states: ''The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const, amend. XI. Controlling interpretations of the Eleventh Amendment firmly "establish that an unconsenting [sjtate is immune from suits brought in federal courts by her own citizens as well as by citizens of another state." Pennhurst State Sch. & Hosp. V. Halderman, 465 U.S. 89, 100 (1984) (citation and internal quotation marks omitted). equally applies to a state's Eleventh Amendment immunity agencies and departments. Id. Furthermore, Eleventh Amendment immunity "remains in effect when [s]tate officials are sued for damages in their official capacity." Kentucky v. Graham, 473 U.S. 159, 169 (1985). The Eleventh Amendment bars Section 1983 suits absent state waiver of immunity or congressional override. 491 U.S. 58, 66 (1989). Will v. Mich. Dep^t of State Police, Plaintiff contends neither that Georgia has consented to suit under Section 1983 nor that congressional override permits the claim. Plaintiff does assert, however, that this matter presents two exceptions to sovereign immunity. First, Plaintiff recognizes that although Graham acknowledged 'Mt]he [Supreme] Court has held that [Section] 1983 was not intended to abrogate a [s]tate's Eleventh Amendment Immunity," Graham was before the Supreme Court ^'as if it arose solely under [Section] 1983." (Opp'n to Partial Mot. to Dismiss, at 6 (citing Graham, 473 U.S. at 169 n.l7).) Because he asserts both federal and state law claims. Plaintiff seems to argue that the reasoning in Graham, and Eleventh Amendment immunity in general, is inapplicable to the present case. The Court is unfamiliar with, and Plaintiff offers Eleventh Circuit authority adopting Plaintiff's position. no. Courts in this Circuit have repeatedly found Eleventh Amendment immunity despite the action containing both federal and state law claims. See, e.g.. Gray v. Royal, 181 F. Supp. 3d 1238, 1246-47, 1254-55 (S.D. Ga. 2016); Marzec v. Toulson, No. CV 103-185, 2007 WL 1035136, at *3, *8 (S.D. Ga. Mar. 30, 2007); Garnett v. Georgia, No. CV 106-032, 2007 WL 9701364, at *1-3 (S.D. Ga. Jan. 3, 2007). As a result, the Court concludes that Plaintiff's assertion of 10 state law claims has no bearing on whether the Eleventh Amendment protects two governmental entities and the Individual Defendants in their official capacities from Plaintiff's Section 1983 claims. Second, Plaintiff argues that Eleventh Amendment immunity. at 6.) Defendants' removal (Opp'n to Partial Mot. to Dismiss, In support. Plaintiff directs the Court to Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613 (2002). As the waived Eleventh Circuit misinterprets Lapides. has stated. Plaintiff's (Id.) reasoning Lapides ^^held that a [s]tate's removal to federal court waives ^its immunity from a federal forum' — that is, its immunity from suit, not from liability." Page v. Hicks, 773 F. App'x 514, 518 (11th Cir. 2019) (emphasis in original) (quoting Stroud v. Mclntosh, 722 F.3d 1294, 1302 (11th Cir. 2013)). In Stroud, the Eleventh Circuit concluded that Lapides does not apply to facts presently before this Court. 722 F.3d at 1302. Lapides addressed sovereign immunity in the context of a state law claim to which Georgia ^^has explicitly waived immunity from state- court proceedings." Id. (citing Lapides, 535 U.S. at 617). Therefore, Stroud determined Lapides is not controlling where the claim is federal and the state has not waived immunity protection as to that federal claim. Id. at 1299-1302. Put another way, Stroud recognized two classes of Eleventh Amendment immunity. First, a state, and arms of the state, are immune from suit in federal court (^^forum immunity"). 11 Id. at 1302- 03. Second, a state is immune from liability as to certain claims (^^claim immunity"). Id. In affirming dismissal of the plaintiff's federal Age Discrimination in Employment Act claim, Stroud found Lapides's reasoning as to waiver of forum applicable when federal claims are involved. immunity equally Id. at 1302. Thus, by removing the present action, the state actors waived immunity from suit in federal court. As to claim immunity, however, Stroud concluded removal did not constitute waiver. Similarly, although GDC, in BOR, and the Individual Defendants their official capacities waived forum immunity, they did not waive claim immunity under the Eleventh Amendment as to Plaintiff's Section 1983 claims. Finding Eleventh Amendment claim immunity applicable and no waiver of the constitutional protection, dismissal of the Section 1983 claims is proper as to BOR, GDC, and the individual defendants in their official capacities.^ 6 Additionally, the Section 1983 claims against BOR, GDC, and the Individual Defendants in their official capacities are appropriately dismissed because Section 1983 does not contemplate liability against them. Section 1983 states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress . . . . The United States Supreme Court has held that "neither a [sjtate nor its officials acting in their official capacities are ^persons' under [Section] 1983." Will, 491 U.S. at 71. Similar to states and their officials, state agencies are not "persons" as contained in Section 1983. Fla., LLC, 895 F.3d 1270, 1278 (11th Cir. 2018). 12 Newton v. Duke Energy 2. Failure to State a Claim and Qualified Immunity Defendants additionally move to dismiss Plaintiff's Complaint claiming that (1) Plaintiff fails to state a claim for deliberate indifference against the Defendants and (2) Individual Defendants in their individual capacities are entitled to qualified immunity. (Br. Supp. Partial Mot. to Dismiss, at 6-23.) Qualified immunity is a judicially created affirmative defense under which ''government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For qualified immunity to apply, a public official first has to show she was "acting within the scope of [her] discretionary authority when the allegedly wrongful acts occurred." Lumley v. City of Dade Cty., 327 F.3d 1186, 1194 (11th Cir. 2003) (citations omitted). To determine whether a government official was acting within the scope of her discretionary authority, courts consider whether the official "was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within [her] power to utilize." Holloman ex Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). rel. Here, the Parties do not dispute that the Individual Defendants were 13 acting within their discretionary authority, and the Court finds no reason to conclude otherwise. Once a defendant establishes that she was "acting within [her] discretionary authority, the burden shifts to the plaintiff to demonstrate that qualified immunity is not appropriate." Lumley, 327 F.3d at 1194; see also Bowen v. Warden Baldwin State Prison, 826 F.3d 1312, 1319 (11th Cir. 2016) (applying same burden-shifting framework in Rule 12(b)(6) analysis). Accordingly, the Court must look to the Complaint to see if Plaintiff included sufficient facts demonstrating that the Individual Defendants are not entitled to qualified immunity. Bowen, 826 F.3d at 1319. In doing so, the Court must consider two issues: (A) "whether, taken in the light most favorable to [Plaintiff], the facts alleged show [Defendants'] conduct violated a constitutional right, and, ([B]) if so, whether the right was clearly established." and internal quotation marks omitted). Id. (citation Because the failure to state a claim argument overlaps with the first prong of the qualified immunity test, the Court analyzes them together. Keating V. City of Miami, 598 F.3d 753, 760 (11th Cir. 2010) ("At the motion to dismiss stage in litigation, 'the qualified immunity inquiry and the Rule 12(b)(6) standard become intertwined.") (quoting GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1366 (11th Cir. 1998)). Here, the constitutional right complained of 14 is an Eighth Amendment violation for deliberate indifference to a serious medical need."^ In although Estelle v. Gamble, the United States Supreme Court, not finding deliberate indifference, extended Eighth Amendment protections to medical care determining a prisoner has a ''cognizable claim" when the prisoner "allege[s] acts or omissions sufficiently harmful to serious medical needs." evidence deliberate indifference 429 U.S. 97, 106 (1976). The Parties do not dispute that Plaintiff makes out a serious medical need. Supp. Partial Mot. to Dismiss, at 6 n.2.) to (Br. Therefore, at this stage, only deliberate indifference is at issue. As to the requirements to successfully state a claim for deliberate indifference, there is no indifference requires "(1) subjective dispute. Deliberate knowledge of a risk of serious harm; and (2) disregard of that risk (3) by conduct that is more than mere negligence." Dang ex rel. Dang v. Sheriff, Seminole Cty., 871 F.3d 1272, 1280 (llth Cir. 2017). Subjective knowledge demands that "the defendant '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." "The Eighth Amendment's ban on cruel and usual punishment is made applicable to the states by virtue of the Fourteenth Amendment." Carter v. Galloway, 352 F.3d 1346, 1347 n.l (llth Cir. 2003) (citing Robinson v. California, 370 U.S. 660, 666-67 (1962)). 15 Caldwell v» Warden, FCI Talladega, 748 F.3d 1090, 1099-1100 {11th Cir. 2014) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In Eleventh Circuit decisions, deliberate indifference to medical needs has included: ^Ml) grossly inadequate care; (2) a decision to take an easier but less efficacious course of treatment; and (3) medical care that is so cursory as to amount to no treatment at all.'' Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011). Also, "[a]negations of a delay in medical care for ^serious and painful injuries' . . . can state a claim for a violation of the Eighth Amendment, especially where delay in treating a ^known unexplained." or obvious' serious medical condition is Granda v. Schulman, 372 F. App'x 79, 83 (11th Cir. 2010) (citing Harris v. Coweta Cty., 21 F.3d 388, 393 (11th Cir. 1994); Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990)). But, ^^a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment." U.S. at 106. Estelle, 429 Medical treatment violates the Eighth Amendment only when it is "so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986). Under his- Section 1983 claims, the Court determines that Plaintiff fails to state a claim for relief against some Individual Defendants. 16 a. Deliberate Indifference i. Defendants Chatman, Burnside, and Gore The analysis begins with the GDCP Individual Defendants: Warden Bruce Chatman, Dr. Edward Burnside II, and Nurse Mary Gore. Plaintiff alleges that Dr. Burnside and Nurse Gore discontinued Plaintiff's Plavix prescription in preparation for surgery. The Complaint is void of any indication that stopping the Plavix prescription in preparation of surgery was medically improper. At that point. Defendant was transferred to ASPM and out of the direct care of the GDCP Individual Defendants. Upon returning to GDCP, the Complaint alleges that Dr. Burnside detected numerous blood clots, and Defendant was immediately transferred to the Atlanta Medical Center. The only wrongful conduct Plaintiff alleges against Dr. Burnside and Nurse Gore is their failure to advise ASMP ''as to how long Plaintiff could safely be kept off Plavix and at what point after surgery he should be placed back on Plavix." (Compl., H 21.) At the same time. Plaintiff alleges the personnel at ASMP knew that Plaintiff was prescribed Plavix and was not taking it. Accepting Plaintiff's allegations as true, the conduct does not nearly rise to the level required for a constitutional claim. Based on Plaintiff's allegations, there was no subjective knowledge of risk because Dr. Burnside allegedly told Plaintiff that ASMP would handle his concerns 17 regarding the Plavix prescription. Although Plaintiff attempts to attribute to Defendants Burnside and Gore his complaints made to ASAP personnel concerning his leg^ collective knowledge is not properly considered when evaluating a claim for deliberate indifference to serious medical need. (11th Cir. 2008). Burnette v. Taylor, 533 F. 3d 1325, 1331 Properly analyzing the alleged conduct of Dr. Burnside and Nurse Gore as isolated from ASMP, Plaintiff has failed to state Section 1983 claims against Defendants Burnside and Gore.® Moreover, Plaintiff alleges supervisory liability and failure to train against Defendants Burnside and Chatman. Plaintiff has not alleged facts sufficient to state a deliberate indifference claim for conduct occurring while Plaintiff was under the care of GDCP or showing that Defendants Burnside and Chatman possessed supervisory authority over persons at ASMP. Determining Plaintiff failed to state a deliberate indifference claim against Defendants Burnside and Defendants Gore, Burnside failure to train. Plaintiff and cannot Chatman for state a claim supervisory against liability or Dang, 871 F.3d at 1283 (supervisory liability requires underlying violation); Gish v. Thomas, 516 F.3d 952, 955 (11th Cir. 2008) (failure to train requires underlying violation). ® In addition to the conduct not reaching the level of a constitutional violation, the Court finds no clearly established law advising that the failure to note the discontinuance of a prescription is unlawful. Therefore, Dr. Burnside and Nurse Gore are also entitled to qualified Plaintiff's failure to show the clearly established prong. 18 inununity due to Accordingly, the GDCP Individual Defendants are entitled to qualified immunity. ii. ASMP Medical Officials - Direct Actors As for capacities, the the ASMP Court survive dismissal. to the ASMP medical personnel concludes that in their Plaintiff's individual allegations Defendants argue that, particularly in regard medical personnel. Defendants did not draw the inference that a substantial risk of serious harm existed. In light of the allegations contained in Plaintiff's Complaint, the Court disagrees. Plaintiff alleges that the treating ASMP personnel were aware of Plaintiff s medical history; of his Plavix prescription; that he was no longer taking his Plavix prescription; that if he did not resume anti-clotting medication. Plaintiff was at risk of forming blood clots; and that the ASMP medical personnel deprived Plaintiff of his needed medication. These allegations make plausible that the ASMP medical personnel drew the inference that Plaintiff was at serious risk of forming blood clots without his medication. See Kothmann v. Rosario, 558 F. App'x 907, 911-12 (11th Cir. 2014) (affirming district court's denial of motion to dismiss medical indifference claim when complaint alleged the defendant knew of the plaintiff s hormone therapy to treat Gender Identity Disorder and refused to provide hormone therapy); Weeks V. Benton, 649 F. Supp. 1297, 1302-03 (S.D. Ala. Dec. 12, 1986) 19 (finding plaintiff stated a deliberate indifference to serious medical need claim when inmate died deprivation of necessary medication). of heart attack after The plausibility of the ASMP medical staff's knowledge of the risk is heightened when considering that Plaintiff repeatedly complained of his deteriorating condition and expressed concern regarding medication over a month's time. See Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989). At this stage, the Court is required to accept Plaintiff's allegations as true. Although the Court agrees that misdiagnosis,^ failure to apply certain diagnostic testing, and a disagreement regarding course of treatment^^ are not grounds to state a Section 1983 claim for violation of the Eighth Amendment; knowledge regarding Plaintiff's prescription, the interference with this medication, and Plaintiff's repeated complaints that his condition was not improving permits a factfinder to infer that knowledge of the need for anti-clotting medication and the refusal to provide the anti-clotting medication constituted deliberate ^ "[Medical personnel] cannot be held liable for failing to diagnose . . . colon cancer." McElliqott v. Foley, 182 F.3d 1248, 1256 (11th Cir. 1999). "A medical decision not to order [certain diagnostic tests] does not represent cruel and unusual punishment." 11 " Estelle, 429 U.S. at 107. simple difference in medical opinion between the prison's medical staff and the inmate as to the letter's diagnosis or course of treatment' does not support a claim for deliberate indifference." Ross v. Corizon Med. Servs., 700 F. App'x 914, 916 (11th Cir. 2017) (quoting Harris v. Thiqpen, 941 F.2d 1495, 1505 (11th Cir. 1991)). 20 indifference. See McElligott v. Foley, 182 F.3d 1248, 1258-59 (11th Cir. 1999); Carswell v. Bay Cty., 854 F.2d 454, 457 (11th Cir. 1988). iii. Wardens Shepard and McGrew - Direct Actors To the extent Plaintiff asserts direct liability against Defendants Shepard and McGrew, Plaintiff alleges sufficient facts to state a appropriate treatment. claim. Prison measures to officials ensure a are required to take prisoner receives adequate In doing so, prison officials ''are entitled to rely on medical judgments made by medical professionals responsible for prisoner care.'' Williams v. Limestone Cty., 198 F. App'x 893, 897 (11th Cir. 2006); see also Howell v. Evans, 922 F.2d 712, 723 (11th Cir. 1991) ("We do not dispute [a prison official's] right to rely on medical professionals for clinical determinations.") (emphasis omitted). Here, Defendants however. Shepard Plaintiff and McGrew does more deferred to than allege medical that judgment. Generally, collective knowledge is insufficient to satisfy a claim for deliberate indifference. Although multiple defendants are named, "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 kn[ew]." Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008). The Court notes that this is a close call because Plaintiff alleges he complained numerous times to several ASM? Individual Defendants. Overall, however, Plaintiff contends that each of the ASMP Individual Defendants were aware of information concerning Plaintiff's medical history and prescription. At this stage, based upon his alleged individual interactions with the ASMP medical personnel, the Court must accept as true Plaintiff's allegation that the ASMP Individual Defendants were aware of the information alleged. 21 Instead, Plaintiff alleges that Defendants Shepard and McGrew deferred to the ASMP medical personnel knowing that the medical staff was acting with deliberate serious medical need. indifference to Plaintiff's The alleged conduct, which the Court is obligated to accept, states a direct claim against Defendants Shepard and McGrew for deliberate indifference as direct actors. See Goebert v. Lee Cty., 510 F.3d 1312, 1328 (11th Cir. 2007) (reversing grant of summary judgment for prison official in part because "[r]ather than take any action or even inquire into the situation, [prison official] referred [inmate] back to the same medical staff that [he knew] had ignored her daily requests for aid"). iv. ASMP Supervisors - Failure to Supervise The Eleventh Circuit has solidly established that ^^supervisory officials are not liable under [Section] 1983 for the unconstitutional acts of their subordinates respondeat superior or vicarious liability." 193 F.3d 1263, 1269 (11th quotation marks omitted). Cir. on the basis of Hartley v. Parnell, 1999) (citation and internal To impose supervisory liability for Section 1983 violations, a plaintiff must show either (1) ''the supervisor personally participate[d] in the alleged unconstitutional conduct" or (2) "there is a causal connection between the actions of a supervising official and the alleged 22 constitutional deprivation." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). The Court begins with Drs. Young and Fountain. alleges sufficient facts to infer that each Plaintiff personally participated in his treatment and were aware of his medical and prescription history. Plaintiff states For the reasons stated above in determining Section 1983 claims against ASMP medical personnel, Plaintiff has also stated claims against Drs. Young and Fountain for supervisory liability through their alleged personal participation in his treatment. The Plaintiff same cannot has not be said alleged for facts Wardens that Shepard the Wardens participated in decisions regarding his treatment. Plaintiff may only advance his supervisory and McGrew. personally Therefore, liability theory against Defendants Shepard and McGrew by establishing a ''causal connection" between the wardens actions and the constitutional violation.^'' The necessary "causal connection" may be established Although the Court concluded in Section III(A)(2)(a)(iii), supra, that Plaintiff states a claim against Wardens Shepard and McGrew directly for deferring to ASMP medical personnel treatment they knew to be violating Plaintiff's constitutional rights, the Court finds a difference between Warden Shepard and McGrew's alleged constitutional violations and the alleged supervisory liability through the constitutional violations of the ASMP medical staff. Said another way, there are no allegations that Wardens Shepard and McGrew personally participated in ASMP medical personnel's knowing deprivation of Plaintiff's medication and treatment but, instead, committed their own constitutional violations by deferring to ASMP medical personnel's treatment knowing it to be a constitutional violation. The following "causal connection" analysis equally applies to Drs. Young and Fountain. 23 by showing: (1) ''a history of widespread abuse put[] the responsible supervisor on notice of the need to correct the alleged [constitutional] deprivation, and he fail[ed] to do so"; (2) ^^a supervisor's custom or policy result[ed] in deliberate indifference to constitutional rights"; or (3) "facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so." Id. (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1234-35 (11th Cir. 2003)). Under any of the enumerated theories for supervisory liability, "the standard by which a supervisor is held liable in his individual capacity for the actions of a extremely rigorous." subordinate is Id. (citation omitted). First, Plaintiff has not alleged a history of widespread abuse. Second, although Plaintiff asserts in conclusory terms that a policy or custom resulted in deliberate indifference, no factual allegations though, to prove constitutional yield that harm, incidents . . . or a that a interpretation. policy plaintiff multiple particular employee . . . ." reports or its must of "Either absence point prior way, caused to a multiple misconduct by a Piazza v. Jefferson Cty., 923 F.3d 947, 957 (11th Cir. 2019) (internal citations omitted). "A single incident of a constitutional violation is insufficient to prove a policy or custom even when the 24 incident involves several Id♦ subordinates." 1312 (quoting Craig v. Floyd Cty., (11th Cir. 2011) ) ; accord Goebert, plaintiff failed to meet extremely 643 F.3d 1306, 510 F.3d at 1332 rigorous' (finding standard for supervisory liability" when plaintiff failed to show any other inmate exposed to policy or custom violating the Eighth Amendment) . The Court finds, however, that Plaintiff states a claim under the third prong. Plaintiff alleges that Defendants Shepard and McGrew had supervisory authority over the ASMP medical personnel and knew all of the same facts Plaintiff's medical history, and the time lapsed. as true, a the medical prescription, (Compl., SI 60. ) factfinder could staff did regarding continued complaints, Accepting these allegations conclude that Wardens Shepard and McGrew were aware that ASMP medical personnel's conduct violated the Constitution proscribe that C[S]upervisors and Defendants Shepard conduct. Contra were on not any and Cottone, McGrew 326 notice of failed F.3d at to 1362 [subordinates'] unconstitutional conduct so as to put the supervisors on notice of the need to correct or stop the conduct of [subordinates] by further training or supervision."); Cameron v. Allen, 525 F. Supp. 2d 1302, 1307 correctional (M.D. Ala. officials a 2007) (''The law does not impose duty to directly supervise health care personnel, to set treatment policy for the medical staff, intervene in treatment upon decisions 25 where they have no or to actual knowledge that intervention is necessary to prevent a constitutional wrong."). V. ASMP - Failure to Train Next, Plaintiff alleges Young, Fountain, Shepard and McGrew are liable for failure to train. ''^As the Supreme Court has indicated, that Defendants ^a supervisor's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.'" Keith v. DeKalb Cty., 749 F.3d 1034, 1053 (llth Cir. 2014) (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). 'MU]nder [Section] 1983, a supervisor can be held liable for failing to train his or her employees ^only where the failure to train amounts to deliberate indifference to the rights of persons with whom the [supervisors] come into contact.'" Id. (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Therefore, an allegation of ''a constitutional violation premised on a failure to train must demonstrate that the supervisor had ^actual or constructive notice that a particular omission in their training program causes his or her employees to violate citizens' constitutional rights,'" and, despite that knowledge, supervisor chose to retain that training program." "the Id. at 1052 (quoting Connick, 563 U.S. at 61). "Actual or constructive notice" generally requires "a pattern of similar constitutional violations by untrained employees." Id. at 1053 (quoting Connick, 563 U.S. at 62). 26 Plaintiff alleges no non-conclusory facts that demonstrate a pattern of ASM? rights. Instead, Plaintiff relies on a particular exception set forth in Harris. personnel violating inmates' 489 U.S. at 390 n.lO. constitutional The exception addresses ''moral certainties," such as the need to train police officers in the constitutional limitations of deadly force. Id. No such moral certainty is present regarding Plaintiff's treatment. personnel inherently receive training regarding Medical prescribing medication, such as Plavix's use for treating clotting issues, outside of the prison setting. allege a employees. pattern of Additionally, Plaintiff does not constitutional violations by untrained The Complaint's allegations do not meet the moral certainty exception or otherwise state a constitutional claim for failure to train. b. Clearly Established Qualified immunity bars government officials' liability for civil damages so long "as their conduct does not violate clearly established statutory or constitutional rights." Morris v. Town of Lexington, 748 F.3d 1316, 1321 (11th Cir. 2014) (quoting Pearson V. Callahan, 555 U.S. 223, 231 (2009)). A right is clearly established where it would be clear to a reasonable person in the defendant's position that his conduct was unlawful in the situation he confronted. Cottone, 326 F.3d at 1359; see also Valderrama v. Rousseau, 780 F.3d 1108, 1112-13 (11th Cir. 2015) ("A principle of 27 constitutional law can be ^clearly established' even if there are ^notable factual distinctions between the precedents relied on and the cases then before the [c]ourt, so long as the prior decisions gave reasonable warning that the conduct at issue violated constitutional rights.'") (quoting Holloman, 370 F.3d at 1277). As stated herein, Plaintiff has pleaded a violation of his rights under the Eighth Amendment against ASMP personnel. The remaining question is whether the state of the law at the time of the alleged constitutional violation gave ASMP Defendants ^^fair warning" that the treatment in question was unconstitutional. Hope V. Pelzer, 536 U.S. 730, 731 (2002). See Defendants argue that when viewing the specific alleged conduct, they were not on notice their conduct was unconstitutional. This district has determined ^^a reasonable person would know that an exceptionally long delay in providing a diabetic inmate with medical care in light of a serious, constitutes a constitutional violation." painful leg injury Walsh v. Jeff Davis Cty., No. CV 210-075, 2012 WL 12952564, at *16 (S.D. Ga. Mar. 29, 2012) (ten-day delay) (citing Brown, 625 F.2d at 1538-39; Aldridge v. Montgomery, 753 F.2d 970, 972-73 (11th Cir. 1985)). Considering that Walsh addressed diabetes, a known prior condition, the same logic applies to an inmate with a known clotting condition being deprived of anti-coagulant medication for approximately one month. 28 Based on the foregoing, the ASMP Individual Defendants' qualified immunity defense fails at this stage. B. State Law Claims - Counts II-V Additionally, Plaintiff asserts a number of state law tort claims against Defendants. (Compl., 67-91.) Defendants argue that official immunity applies to the Individual Defendants for any violation of the state law claims. Dismiss, at 23-24.) (Br. Supp. Partial Mot. to Further, Defendants maintain the Georgia Tort Claims Act C'GTCA") prohibits recovery of punitive damages. at 25.) (Id. The Court addresses each of Defendants' advanced reasons for dismissal. 1. Official Immunity Defendants contend that the Individual Defendants named are entitled to official immunity under the Georgia Tort Claims Act C'GTCA"). Plaintiff failed to respond to this argument in his response brief, arguably waiving any opposition to Defendants' argument. See Zarate v. U.S. Attorney Gen., 307 F. App'x 289, 290 (11th Cir. 2009) (''A party . . . waives an issue by failing to make any substantive arguments with respect to that issue.") (citing Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)); Horton v. Delta Air Lines, Inc., No. 1:07CV-1069-WSD-LTW, 2008 WL 11320068, at *2 n.3 (N.D. Ga. Aug. 15, 2008) (citing Iraola & CIA, S.A. v. Kimberly-Clerk Corp., 325 F.3d 1274, 1284 (11th Cir. 2003); Wilkerson v. Grinnell Corp., 270 F.3d 29 1315, 1322 (11th Cir. 2001)); Blankenship v. City of Russellville, No. CV-07-J-0740-IPJ, 2008 WL 11379948, at *3 (N.D. Ala. Apr. 7, 2008) (finding claim abandoned in part because the plaintiff failed to respond to defendant's summary judgment arguments as to that claim); see also Moore v. Guzman, 362 F. App'x 50, 53 (11th Cir. 2010) (^'[L]itigants abandon arguments raised for the first time in their reply briefs.") In his sur-reply brief. Plaintiff claims deciding the immunity question now is premature because it is unclear whether contractors or the Individual employees of the Defendants state. are (Doc. independent 49, at 7.) Plaintiff's argument belies his contention in the Complaint that 'Ma]11 Defendants were, at all times relevant to this Action, persons acting under color of state law." (Compl., Pursuant to O.C.G.A. § 50-21-25(a), "A state 49-50.) officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor." At all times alleged. Plaintiff was a prisoner of the State of Georgia and subject to medical care as such. In Shekhawat v. Jones, the Supreme Court of Georgia held that physicians acting within the scope of their state employment were entitled to official immunity. 746 S.E.2d 89, 93 (Ga. 2013). Although Plaintiff argues, in his sur-reply brief, that some of the personnel may be independent contractors, the Complaint is void of allegations to that effect. 30 Cf. id. at 94 ('MW]e observe that this case does not present a situation involving physicians who are state-employed but also engage in some type of outside private practice."). Plaintiff presents no additional arguments that official immunity is inapplicable here.^^ Individual Defendants are entitled to Accordingly, the official immunity under Georgia law as to Plaintiff's state law claims. 2. Punitive Damages Finally, Plaintiff fails to state a claim for punitive damages to the extent the punitive damages are derivative of his alleged state law claims. First, under O.C.G.A. § 50-21-30, the GTCA prohibits recovery of punitive damages. Second, ^'punitive damages are not allowed against a governmental entity." City of Kingsland V. Grantham, 805 S.E.2d 116, 119 (Ga. Ct. App. 2017) (citing MARTA V. Boswell, 405 S.E.2d 869, 869-70 (Ga. 1991)). In response. Plaintiff cites Durden v. Newton Cty, No. 1;14—CV—01163—RWS, 2015 WL 71446 (N.D. Ga. Jan. 5, 2015), to argue that punitive damages are permitted here. (Opp'n to Partial Mot. to Dismiss, at 7.) In Durden, the court denied a private corporation's motion to dismiss punitive damages against it. The facts presented are Durden, 2015 WL 71446, at *1, *4. distinguishable from Durden because Plaintiff only named governmental entities in the Complaint and Plaintiff does not assert that the actions in question were ministerial or Defendants acted with "actual malice or actual intent to cause injury" so as to pierce official immunity protections. Richardson v. Quitman Cty., 912 F. Supp. 2d 1354, 1381 (M.D. Ga. 2012) (applying Georgia law). 31 does not allege private entities were responsible for providing care. Accordingly, Plaintiff fails to state a claim for state law punitive damages. IV. CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Defendants' partial motion to dismiss Plaintiff's Second Amended Complaint (Doc. 43) is GRANTED IN PART and DENIED IN PART. Specifically, the following parties and claims are DISMISSED: (1) Defendants Warden Bruce Chatman, Dr. Edward Burnside, and Nurse Mary Gore are dismissed from the lawsuit entirely; (2) To the extent Plaintiff asserts Section 1983 claims against Defendants GDC and BOR, Plaintiff's claims are dismissed; (3) To the extent Plaintiff asserts Section 1983 claims against the ASMP Individual Defendants in their official capacities. Plaintiff's claims are dismissed; (4) To the extent Plaintiff asserts Section 1983 failure to train claims against Defendants Dr. Kimberly Fountain, Dr. Timothy Young, Warden Stan Shepard, and Warden Betty McGrew, Plaintiff's claims are dismissed; (5) To the extent Plaintiff asserts state tort claims. Counts II-V, against the Individual Defendants, Plaintiff's claims are dismissed; and 32 (6) Plaintiff's claim for punitive damages premised upon the alleged state tort claims is dismissed as to all Defendants. Consequently, the following claims SHALL PROCEED against the following Defendants: (1) Plaintiff's Individual Section 1983 claims against the ASMP Defendants in their individual capacities as direct actors; (2) Plaintiff's Section 1983 claims for supervisory liability against Defendants Dr. Kimberly Fountain, Dr. Timothy Young, Warden Stan Shepard, and Warden Betty McGrew; (3) Plaintiff's state law claims against the governmental entity defendants; and (4) Plaintiff's claim for punitive damages premised upon Plaintiff's remaining Section 1983 claims. The Clerk is DIRECTED to TERMINATE Defendants Chatman, Burnside, and Gore as parties and any deadlines and motions pertaining to them. The remaining Defendants SHALL file their answers to Plaintiff's Second Amended Complaint within FOURTEEN DAYS of this Order. The Parties are reminded of United States Magistrate Judge Epps's Order dated September 20, 2018, regarding the Rule 26(f) Report. (Doc. 47.) 33 ORDER ENTERED at Augusta, Georgia,_ _this day September, 2019. UNITED ^ATES DISTRICT COURT SOUTHERN 34 DISTRICT OF GEORGIA of
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