Davison v. Georgia Correctional Health, LLC et al, No. 6:2016cv00039 - Document 53 (S.D. Ga. 2016)
Court Description: ORDER denying 35 Motion to Dismiss; denying as moot 12 Motion to Dismiss. Signed by Judge J. Randal Hall on 10/27/2016. (maa)
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Davison v. Georgia Correctional Health, LLC et al Doc. 53 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION CINDY DAVISON, of the Estate as Administrator * of Randall * Davison, * Plaintiff, * v. * STEPHEN NICOLOU, P.A., and SERGEANT DEDRICK ANTHONY, CV 616-039 * * Defendants. * ORDER This Dismiss matter is Plaintiff's before the Court on Amended Complaint. Defendant's (Doc. Motion 35.) to Plaintiff filed a response and sur-reply in opposition (docs. 39, 46), and Defendants response filed a reply in support (doc. as a to Accordingly, Defendants' motion has been fully briefed and is For the reasons (doc. as opposition Defendants' sur-reply well in ripe for the Court's review. Plaintiff's 44) 47). stated herein, motion is DENIED. I. BACKGROUND1 This case arises from the death of Mr. Randall Davison from complications resulting from a bacterial infection he contracted 1 When reviewing a Rule 12(b)(6) motion to dismiss, courts must allegations in the complaint as true and construe them in the favorable to the plaintiff. Belanger v. Salvation Army, 556 F.3d (11th Cir. 2009) (citing Jackson v. BellSouth Telecomm., 372 F.3d (11th Cir. accept the light most 1153, 1155 1250, 1262 2004)). Dockets.Justia.com while he was Reidsville, a prisoner at the Georgia State Prison Georgia. incarcerated, The amended complaint alleges that, Defendants Dedrick Anthony medical needs were of a Mr. tattoo unsanitary Stephen Nicolou, deliberately Davison. administrator of Mr. received ("GSP") his conditions at indifferent Specifically, Davison's on P.A., estate, forearm GSP. (Am. to the serious as that Mr. another Compl., while Sergeant Plaintiff, alleges from and the Davison prisoner Doc. in 14, SI in 20.) According to Plaintiff, prisoners commonly tattoo one another in unsterile carry conditions high risks with of improvised infection. needles (Id. SI and 21.) ink, When which infected tattoos are treated properly, significant illness is rare; left untreated, however, serious ultimately death. (Id. infection SI 23.) can lead Defendants to sepsis and and GSP's medical staff were aware of prisoner's proclivity to tattoo one another in unsanitary conditions and the resulting risks of infection. (Id. SI 22.) infected. After being tattooed, Mr. (Id. SIS! 24-25.) Defendants' Davison's deliberate infection Plaintiff concludes that, because of indifference went untreated suffering and untimely death. Plaintiff, In conditions. to his and medical led to needs, his Mr. needless The relevant facts, as alleged by are as follows. late prisoner Davison's forearm became December tattooed (Id. 2014 Mr. SI 20.) or early Davison's January forearm After being tattooed, 2015, in Mr. another unsanitary Davison's forearm became Mr. Davison infected and sought swollen with pus. treatment for his (Id. infection medical unit at 9:40 a.m. on January 21, 2015.2 He was first seen reported his by symptoms, trouble moving his neck, shoulder, 33.) Ms. symptoms (Id. SI to the Ms. Melissa which included a arm, pain in his related on-duty At Mr. nurse, Mr. approximately Davison, prescribed him Nicolou, being Mr. sent back to 2:10 p.m. on January returned to the GSP medical unit. by a different nurse, Ms. whom and his he Defendant three SISI of 31- his Nicolou. Nicolou anti-inflammatory (Id. SISI 35-39.) dormitory by (Id. 2015, (Id^ SI 41.) Tomeka (Id. Defendant a.m., 21, forearm, description Davison's condition deteriorated. approximately seen his to red. provider, drugs,3 and sent him back to his dormitory. After (Id. SISI 30-31.) shoulder, 9:55 GSP's deeply inflamed tattoo, Davison's medical 24-25.) from Hughes, and chest having turned deep Hughes 34.) examined a SIS! Browder, Defendant SI 40.) Mr. At Davison He was first to whom he reported his symptoms, which now included pressure in his chest 2 As alleged by Plaintiff, Georgia Correctional Healthcare ("GCHC") contracts with the Georgia Department of Corrections to provide health care services to its prisoners. (Am. Compl. 1 17.) Plaintiff contends that there were only four "medical providers" capable of diagnosing and treating prisoners' medical problems that were employed by GCHC and assigned to GSP at the time of the events described in Plaintiff's amended complaint. (Id. 11 18-19.) These medical providers included Defendant Nicolou, another physician's assistant, a nurse practitioner, and a physician. (Id. 1 18.) Notably, only "non-provider" nurses are on duty during weekend hours at GSP. (Id. 1 19.) 3 Specifically, Defendant Nicolou prescribed Mr. Davison: (1) Toradol (a non steroidal, anti-inflammatory drug used for short-term treatment of pain); (2) Depo-Medrol (an anti-inflammatory glucocorticoid); and (3) Solu-Medrol (an anti-inflammatory glucocorticoid). (Am. Compl. 1 37 n.l.) None of the aforementioned drugs are indicated for treatment of a bacterial infection or are otherwise able to counteract such an infection. (Id.) radiating down his left arm, trouble breathing, and constant chest pain that was aggravated by movement and inhalation. SISI 41-42.) He his chest, Mr. Davison's then also presented with neck, and tattoo site. and symptoms arrival refused to examine Mr. Browder informed Mr. examine him that and redness Davison. Davison he that should and inflammation of Ms. (Id.) to Browder Defendant (Id. SISI Defendant return to his office (Id. and SISI 46-47.) told Mr. he Between January 21 and January 23, Mr. of his trouble bunk, walking (Id. SISI 52-53.) he and When Ms. would dormitory, not Mr. ill and needed to Davison would not see Mr. (Id. SI 48.) continued to deteriorate; out who Defendant Nicolou then came out of that Davison again that day. 43-45.) his related Nicolou, Nicolou Davison protested and complained that he was be treated. (Id. Davison's condition he required assistance to get could not move breathing, and his he tattooed was in On the morning of January 23, in and arm, he constant 2015, Mr. had pain. Davison again went to GSP's medical unit and related his symptoms to a nurse. (Id. SI 53.) A medical staff member then conveyed Mr. Davison's complaints and symptoms to Defendant Nicolou.4 54.) The medical with the knowledge staff member, of "under the Defendant Nicolou, (Id. SI supervision of and refused to treat Mr. 4 It is unclear from Plaintiff's Amended Complaint and briefing whether the aforementioned unidentified nurse and the unidentified medical staff member are the same person. The Court has presumed, however, that Plaintiff has used particular language intentionally and that the nurse and medical staff member are different individuals for the purposes of its analysis below. Davison." (Id.) Desperate for medical assistance, Mr. Davison complained to the nurse about the failure to treat his condition and asked Mr. the to then Davison nurse send explained Anthony, who had observed Mr. that had been he ill for him to to a doctor. (Id. Defendant SISI Sergeant 57-58.) Dedrick Davison's complaints to the nurse, days, that he was in constant pain, that he was having trouble walking and breathing, and that his arm, SI chest, response, to an and neck were purplish-red. (Id. 58.) Defendant Anthony ordered that Mr. Davison be confined isolation cell for several hours. (Id. SISI 60-61.) medical treatment was provided to Mr. Davison before, after his isolation. Mr. 62, Davison's 64.) On correctional (Id. condition the staff evening member SI 63.) In response, No during, or (Id. SISI SISI 60-62.) continued to of told deteriorate. Friday, a nurse January about and swollen neck and the need to treat Mr. (Id. In Mr. 23, 2015, Davison's Davison's a red infection. the nurse told the correctional staff member that there was "nothing they can do" because there was no healthcare "provider" While other prisoners Mr. Davison's on duty at GSP on submitted multiple behalf over the weekend, the weekend. sick call no medical (Id. ) requests on treatment was provided to Mr. Davison until the morning of Monday, January 26, 2015. (Id^ SISI 65-66. ) Unable to walk, Mr. Davison was taken to the GSP medical unit by wheelchair on January 26, 2015. (Id^ SI 67. ) There, Mr. Davison noted was that breathing, and examined Mr. Davison scabbed arm, on recommended a his that Regional admitted to had practitioner, sharp and Davison Center Tim constant Hiller, pain, in intensive mass (Id. be SISI on transported Vidalia, care neck, Mr. to Georgia, unit trouble a reddened his 68-69.) the Mr. respiratory failure, Hiller he Davison also had gangrene and liver failure. transferred Medical with Center, to where the he (Id.) intensive passed on Mr. care away his limbs, Davison was unit on at the February 15, (Id. 74-75.) On April 1.) was diagnosed 2015 from sepsis and related multi-system organ failure. SISI 5-6, and Meadows where and who sepsis, acute renal failure, and rhabdomyolysis. 71-72.) subsequently reddened shoulder. the staphylococcus, Atlanta nurse large Mr. Medical SISI a "purplish red" skin on his chest and neck, cellulitis (Id. by 4, 2016, Plaintiff instituted this case. (Doc. On May 9, 2016, Defendant Nicolou filed a motion to dismiss Plaintiff's complaint. (Doc. filed an amended complaint. Defendants their filed 12.) (Doc. On May 25, 14.) to Plaintiff July 29, 2016, dismiss Plaintiff's Under Federal Rule of Civil Procedure 8(a)(2), a complaint amended complaint. present motion On 2016, (Doc. 35.) II. LEGAL STANDARD 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. Atl. Rule Corp. v. Twombly, 12(b)(6) motion 550 U.S. to 544, dismiss, 555 (2007). therefore, To survive a a complaint include enough "factual allegations to raise a right to above the claim to speculative relief that level," and those is plausible on facts its Bell must face." must relief "state Id. at a 570. Although a complaint attacked by a Rule 12(b)(6) motion need not be buttressed by detailed factual allegations, the plaintiff's pleading obligation "requires more than labels and conclusions, and a will formulaic recitation of the elements not do." Id. at "demands more than harmed-me accusation." 555. an The Rule unadorned, Ashcroft of a 8 cause of action pleading standard the-defendant-unlawfully- v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 556 U.S. at 555). At the same time, a complaint should not be dismissed for failure to state a claim "unless it appears beyond a doubt that the plaintiff entitle him to (1957); can prove no relief." of Conley v. see also Robinson 423 (11th Cir. 2012) set v. circumstances Gibson, 355 United States, U.S. 484 F. that would 41, 45-46 Appfx 421, (quoting Lopez v. First Union Nat' 1 Bank of Fla. , 129 F.3d 1186, 1189 (11th Cir. 1997)). At this stage, courts must accept as true all facts alleged in the complaint and construe all reasonable favorable to the plaintiff. inferences Belanger v. in the light Salvation Army, most 556 F.3d 1153, 1155 Telecomm., (11th Cir. 372 F.3d 1250, 2009) 1262 III. Plaintiff alleges in (citing (11th Cir. claim BellSouth 2004)). her amended complaint that Defendants Davison's medical needs in Davison's rights under the Eighth Amendment and seeks money damages under 28 U.S.C. § 1983. dismiss, v. DISCUSSION were deliberately indifferent to Mr. violation of Mr. Jackson In their motion to Defendants allege that Plaintiff has failed to state a upon which relief can be granted and that qualified immunity bars Plaintiff's claims. A. DELIBERATE Deliberate INDIFFERENCE TO MEDICAL NEEDS indifference to the serious medical needs of a prisoner is proscribed by the Eighth Amendment's prohibition of unnecessary and wanton infliction of pain. F. App'x 590, 429 U.S. 97, 595 (11th Cir. 104 plaintiff must need; the (2) (1976)). show: the prisoner's (citing Estelle v. the prisoner acted with serious medical had a deliberate need; and (3) wrongful conduct caused the prisoner's injury. Cnty., 510 F.3d 1312, 1326 Orum, 422 F.3d 1265, (11th Cir. 2007) 1272 (11th Cir. 2466 (2015)); (11th Cir. Hale v. Tallapoosa Cnty., 1995)). 8 serious medical indifference the a to defendant's Goebert v. Lee (citing Bozeman v. 2005) abrogated on other grounds by Kingsley v. Ct. Gamble, To prove deliberate indifference, (1) defendant 2013) Harris v. Leder, 519 (per Hendrickson, curiam), 135 S. 50 F.3d 1579, 1582 1. The Mr. first requires a element of plaintiff objectively serious enough to serious Davison's to Serious Medical a deliberate show medical that need. Need indifference the "A prisoner medical had an that need satisfy the objective component claim is Ais one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Dekalb Reg'l Youth Pet. Ctr., 40 F.3d Id. (quoting Hill v. 1176, 1187 (11th 1994), overruled in part on other grounds by Hope v. U.S. 730, 739 n.9 Defendants medical needs objective serious do not appear were to contest whether Mr. sufficiently and the serious Court is to Davison's satisfy satisfied this as to their Plaintiff alleges that Mr. Davison suffered from a bacterial received Pelzer, 536 (2002)). component, seriousness. Cir. in infection unsterile Compl. II 20-21.) reduce the risks that resulted conditions While early associated with while from tattoo incarcerated. treatment such a a can he (Am. significantly bacterial infection, lack of proper treatment can - and did - result in sepsis and even death. of the infection, (Id. M symptoms the vast 5, 13, 23-24.) resulting majority from of Moreover, Mr. Davison's bacterial which physically manifested themselves to the naked and untrained eye, even a lay person would easily the seriousness recognize are the so obvious that necessity for medical Supp. attention. 2d 217, infection need); 1990) and See, 227-28 e.g., Andrews (D.N.J. resulting v. 2000) symptoms see also Brown v. Hughes, Cty., 95 (life-threatening were 894 Camden obvious F.2d 1533, serious 1538 F. blood medical (11th Cir. (collecting cases as to what constitutes a serious medical need). 2. The Defendants Acted with Deliberate Indifference second requires a element showing indifference to risk of risk; that the requires proof of: by a each deliberate defendant prisoner's medical indifference acted with need. claim deliberate This in turn (a) the defendant's subjective knowledge of a serious harm; (c) of and conduct (b) that the defendant's disregard of is more than gross that negligence. Goebert, 510 F.3d at 1327 (quoting Bozeman, 422 F.3d at 1272). To satisfy the "subjective knowledge of the risk" sub- element, a 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 Brennan, 511 U.S. 825, 837 (1994). inference." Farmer v. Deliberate indifference does not encompass "an official's failure to alleviate a significant risk that he should have perceived but did not." Taylor, 511 U.S. 533 F.3d 1325, at 838); see 1331 (11th Cir. also Keele Supp. 2d 1270, 1292 (S.D. Ga. 2013) v. Glynn (quoting Farmer, Cty., Ga., 938 F. ("[T]he official must have actually perceived the medical need."). 10 2008) Burnette v. Nonetheless, "[w]hether a particular defendant has subjective serious harm is a question of the usual evidence, of a ways, knowledge fact subject to including inference obvious." risk Goebert, from 510 the F.3d at very 1312 fact the risk of demonstration in from and a factfinder may conclude that a substantial of circumstantial [defendant] that the knew risk (quoting Farmer, 511 was U.S. at 842) . To satisfy the must show Plaintiff "disregard that of the the risk" defendant "disregarded substantial risk of serious harm to the prisoner] take reasonable measures at 1292 (quoting Farmer, defendant actually health and the to abate it." 511 U.S. sub-element, Keele, at 847). [the by failing to 938 F. Thus, Supp. even 2d if a knew of a substantial risk to a prisoner's resulting harm was not ultimately averted, no liability will attach if the defendant responded reasonably to the perceived risk. Id. Even is if medical a defendant needs, however, (quoting generally one episode Farmer, attentive prisoner's can suffice Rogers v. Evans, 792 Like the first sub-element, "is a question of fact that can be shown by standard methods." 511 U.S. a at 844). (citing Murrell v. Bennett, 615 F.2d 306, 310 n.4 (5th Cir. 1980)). this sub-element to of misconduct for a finding of deliberate indifference. F.2d 1052, 1062 (11th Cir. 1986) 511 U.S. Goebert, 510 at 846). 11 F.3d at 1327 (citing Farmer, To that satisfy the gross negligence. treatment to as to law." the so shock fairness. accidental treatment, to be defendant's] merely relevant Goebert, rise must fundamental [the sub-element, or even 1327; (11th Cir. of grossly response a plaintiff] his inadequacy, medical to must medical malpractice violation, inadequate, be or intolerable demonstrate need negligence than ("For medical constitutional or show also Nimmons 2011) incompetent, conscience to see must more constituted 297 [The plaintiff F.3d at level the a conduct 510 409 F. Appfx 295, care excessive final defendant's v. Aviles, the the was in to that more than diagnosis actionable (citations omitted)); Rogers, 792 F.2d at 1060 under or state ("The issue is whether the questioned conduct is cruel and unusual because it involves deliberate medical judgment call, (quoting Murrell, 615 indifference, an accident, F.2d at 310 or something more than a or an inadvertent failure." n.4)). A defendant may disregard a risk with more than gross negligence by, inter alia, intentionally failing or refusing to obtain medical treatment, delaying treatment,6 providing grossly inadequate or 5 "This court has consistently held that knowledge of the need for medical care and intentional refusal to provide that care constitute deliberate indifference." Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989) (citing Carswell, 854 F.2d at 457; Ancata v. Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir. 1985); Fielder v. Bosshard, 590 F.2d 105, 108 (5th Cir. 1979)). 6 "Even where medical care is ultimately provided, a prison official may nonetheless act with deliberate indifference by delaying the treatment of serious medical needs." Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010) (citation omitted). Where the prisoner has suffered increased physical injury due to the delayed provision of medical services, factors to be considered include: (1) 12 the seriousness of the medical need; inappropriate diagnosis or treatment,7 deciding to take an easier but less efficacious course of treatment,8 or providing medical treatment that treatment at (11th Cir. is all.9 1999) Here, so cursory as McElligott v. failed drew conclusion to specifically infection that that Mr. that, Cir. cites 2013), phrase to for "knew Franklin the or plead ill" subjective knowledge that medical 1255 required v. Defendant Nicolou was suffering from treatment Curry, does have known not meet standard. Plaintiff has with F.3d 1246, the fact (11th of Davison the was sub-element's (See Am. Compl., in use Mr. first Defendant 1250 Plaintiff's that a antibiotics, In support, 738 that Plaintiff has that Davison proposition should dangerously ignoring no F.3d 1248, because Plaintiff's complaint fails on its face. Nicolou 182 to (citations omitted). allegedly bacterial amount Foley, Defendant Nicolou argues the to alleged 1 49.) that Even Defendant (2) whether the delay worsened the medical condition; and (3) the reason for the delay. Goebert, 510 F.3d at 1327 (citing Hill, 40 F.3d at 1189). 7 "Medical care so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care violates the eighth amendment." Rogers, 792 F.2d at 1058 (citing Green v. Carlson, 581 F.2d 669, 675 (7th Cir. 1978), aff'd, 446 resulted U.S. from 14 (1980)). deliberate "Whether an instance of medical misdiagnosis indifference or negligence requiring exploration by expert witnesses." Id. 697 F.2d 761, 765 (7th Cir. is a factual question (citing Merritt v. Faulkner, 1983)). 8 >x[W]hen a prison inmate has received medical care, courts hesitate to find an Eighth Amendment violation. Hesitation does not mean, however, that the course of a physician's treatment of a prison inmate's medical or psychiatric problems can never manifest the physician's deliberate indifference to the inmate's medical needs. We reaffirm our position in Rogers that grossly incompetent medical care or choice of an easier but less efficacious course of treatment can constitute deliberate indifference." Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (internal citations omitted). 9 "When the need for treatment is obvious, medical care which is so cursory as to amount Mandel, to no treatment 888 F.2d at 789 at all may amount (citation omitted). 13 to deliberate indifference." Nicolou could had infer drew that subjective that a substantial inference, which a (See, e.g. , Am. reasonable plaintiff in knowledge of Plaintiff has factfinder Compl., Curry, 11 facts existed risk the and pled a could 4-5, 14, Plaintiff has such 55, not F.3d at is plausible on its a which he he in fact facts from conclusion. 79.) simply elements of a deliberate indifference claim, detailed claim that that litany of draw 45, from Unlike the recited the but has provided a face. Cf. Curry, 738 1251-52. Defendant Nicolou also argues that, even if he subjective knowledge of a risk of serious harm to Mr. he did not disregard that risk or otherwise greater than gross negligence. engage did have Davison, in conduct Defendant Nicolou contends that, because he examined Mr. Davison and provided him with a schedule of anti-inflammatory medication 2015, on the morning of January 21, Plaintiff's arguments are nothing more than negligence or medical malpractice claims. (Id.) ignores, provision however, that the Defendant Nicolou's argument of medical services in response to a serious medical risk is not necessarily sufficient to defeat a claim of 182 F.3d at 1255, deliberate see also Fns. indifference. 5-9, supra. See McElligott, Moreover, while Defendant Nicolou attempts to couch Plaintiff's claims as being a simple difference in medical opinion, not so limited. a reasonable Indeed, factfinder Plaintiff's claims are Plaintiff has alleged facts from which could conclude 14 that Defendant Nicolou, inter alia: treatment January (a) for Mr. 23; diagnosis failed or refused to provide or Davison (b) on provided or treatment; course of treatment; the afternoon grossly (c) of inadequate January or took an easier but and/or (d) obtain medical 21 and inappropriate less efficacious provided medical treatment that was so cursory as to amount to no medical treatment at all. See As McElligott, such, 182 F.3d Plaintiff elements of the at has 1255; element 5-9, supra. all three also sufficiently second Fns. satisfied see of her deliberate sub- indifference claim against Defendant Nicolou. Defendant Anthony raises similar arguments to those raised by Defendant Plaintiff's Nicolou deliberate in attacking indifference fail for similar reasons. to the contrary, the second claim, and element these of arguments Despite Defendant Anthony's arguments Plaintiff has pled sufficient facts from which a reasonable factfinder could draw the conclusion that Defendant Anthony had subjective could infer that a that he 58-60, in fact 80.) reasonable knowledge of the facts from which he substantial risk of serious harm existed and drew that Moreover, factfinder inference. (See Am. Compl., 11 15, Plaintiff has alleged facts from which a could conclude that Defendant Anthony disregarded that risk by conduct greater than gross negligence because he, treatment inter for Mr. alia: failed or refused Davison, confined 15 him to to obtain medical an isolation cell until all medical providers had left for the weekend, and failed to monitor his condition.10 Defendant Anthony require him to provide that to Mr. Davison. would be unreasonable Defendant to refusal to Anthony ignores, that the Eleventh Circuit has previously placed such an onus on prison security staff. 1327-29 not it second-guess a medical professional's treatment however, argues ("The mean fact that a See, e.g., Goebert, 510 that Goebert had been seen by Dr. layman could not tell that she F.3d at Brown does had a serious medical need at the time Captain Weaver received her complaint. . . . Captain Weaver had a duty to look into the matter. . . . Rather than take any action or even inquire into the situation, Weaver referred Goebert back to the same medical told him had ignored her daily requests for staff aid."). that she Moreover, Defendant Anthony's argument is not necessarily supported by the facts; Plaintiff has alleged only that Defendant Anthony "was present on January 23, when Mr. Davison verbally complained to a nurse about the failure to treat his condition," not necessarily that Defendant Anthony was aware of how or why treatment was being refused or even that treatment had been refused in his 10 See, e.g., Goebert, 510 F.3d at 1328 (security officer could be liable for deliberate indifference for failure to obtain medical services for prisoner); Brown, 894 F.2d at 1538 (security officer could be liable for deliberate indifference for delay in seeking medical treatment for prisoner); Snow ex rel. Snow v. City of Citronelle, AL, 420 F.3d 1262, 1270 (11th Cir. 2005) (security officer could be liable for deliberate indifference for failure to adequately monitor suicidal detainee); see also Coweta Cty., 21 F.3d at 393 n.6 ("The Due Process Clause of the Fourteenth Amendment protects a pre-trial detainee, and the protection corresponds with that provided to prisoners by the Eighth Amendment." (citations omitted)). 16 presence. (Am. sufficiently satisfied element of her 1 Compl. 58.) all deliberate As three such, Plaintiff sub-elements indifference claim of the against has second Defendant Anthony. 3. Defendants' Acts Caused Mr. Davison's Injuries The final element of a deliberate indifference claim requires a plaintiff to show that "the constitutional violation caused the injury." Cir. 2003) (11th Cottone v. Jenne, 326 F.3d 1352, 1358 (11th (citing Marsh v. Cir. Causation 2001) "can constitutional Zatler v. (en be curiam)). banc)); shown violation." Wainwright, While Butler County by Goebert, personal Goebert, 802 F.2d 397, 268 F.3d 1014, 510 F.3d at 1028 1327. participation in 510 F.3d (citing 401 (11th Cir. supervisory officials are at 1327 not 1986) the (per liable under Section 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability, supervisor liability for a subordinate's acts may exist when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation, such as: (a) a history of widespread abuse puts the responsible supervisor deprivation, policy on notice of the need and he fails to do; results in deliberate (b) to correct the alleged a supervisor's custom or indifference to constitutional rights; or (c) the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully 17 and failed 1360-61 to them from doing so. Cottone, 326 F.3d at (quotations and citation omitted). Here, for stop while Defendant Nicolou contests supervisor liability the medical January 23, were fact in staff member who Defendants do not refused to appear to treat Mr. contest deliberately indifferent to Mr. Davison on that, if Davison's they serious medical needs, their respective constitutional violations caused Mr. suffering Davison's Court finds that and eventual Plaintiff has death. Nonetheless, sufficiently the established the causation element for the purposes of its analysis.11 by Plaintiff and addressed in Section III.A.2, personally treatment their participated for Mr. deliberate infection, Mr. in Davison's denying serious indifference to or suprar Defendants delaying medical Mr. As alleged needs. Davison's adequate But for bacterial Davison's condition would not have deteriorated, he would not have become septic, nor would he have succumbed to multiple-organ failure. (Am. Compl. M 6, 21-24, 40, 52, 61-62, 84.) Nicolou's As to Defendant liability, the 11 See, Mandel, e.g., Court finds 888 F.2d at 789 attempt it to reasonable avoid to supervisor infer from (failure of physician's assistant to order an X-ray of prisoner's broken leg, apprise supervising doctor of prisoner's condition, or have prisoner examined by a doctor or taken to a hospital may have caused worsening of condition or suffering of unnecessary pain); Carswell, 854 F.2d at 457 (failure of physician's assistant to take adequate steps to ensure prisoner received adequate treatment for his deteriorating condition may have caused unnecessary suffering); Goebert, 510 F.3d at 1329 (jailer's failure to act on detainee's serious medical risks delayed detainee's treatment and may have caused worsening in her condition); H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1087 (11th Cir. 1986) (superintendent's authorization and imposition of isolation "effectively placed medical attention beyond [the prisoner's] reach" and provides necessary causal connection). 18 Plaintiff's oversight directed allegations of the that that Defendant relevant staff medical member to 627 F. Appfx 761, knowledge held and liable 768 See, to sexual stop e.g., of sufficient and or either improperly Franklin v. Tatum, (sheriff had sufficient unconstitutional assault had member unlawfully (11th Cir. 2015) ability for staff act failed to stop him from doing so. Nicolou inmate by conduct to be transportation officer). B. Qualified QUALIFIED IMMUNITY immunity bars government officials from being held liable for civil damages so long as their conduct does not violate clearly established statutory or constitutional rights. Morris v. Town of (11th Cir. 2014) (2009)). prove Lexington Alabama, he F.3d 1316, 1321-22 (quoting Pearson v. Callahan, 555 U.S. 223, 231 To claim qualified immunity, that 748 was a government discretionary authority. a defendant must first official acting Cottone, 326 F.3d at 1357. within his To survive a motion to dismiss based on a defendant's prima facie claim of qualified immunity, sufficient to and (2) a demonstrate established (citing state a at the Pearson, established where plaintiff violation that time 555 the the U.S. of must: his rights defendant at 232). (1) allege constitutional violated were acted. Id. A right is facts rights; clearly at 1322 clearly it would be clear to a reasonable person in the defendant's position that his conduct was unlawful in the 19 situation he confronted. F.3d 1200, Rousseau, of are on 1204 780 (11th and the decisions cases gave 2012); 1112-13 law can be factual (citing Loftus v. Clark-Moore, Cir. F.3d 1108, constitutional notable Id. violated constitutional Holloman v. Harland, between the 2015) rights." F.3d the Court, warning 370 Valderrama that the (quoting 1252, if precedents so long as Holloman (11th there relied the conduct 1277 v. ("A principle clearly established even before reasonable also (11th Cir. distinctions then see 690 prior at issue ex Cir. rel. 2004) (internal quotations omitted))). As Mr. stated, Plaintiff has Davison's rights under the Eighth Amendment. Defendants were discretionary whether the Defendants government authority,12 state of the "fair warning" was unconstitutional. law sufficiently pled a violation of being "well officials all that remains law in January 2015 that Mr. See Hope, settled acting that Davison's 536 U.S. prison is Assuming that within to their determine would have given alleged treatment at 731. officials' Despite the deliberate indifference to prisoners' serious medical needs gives rise to a constitutional claim," (11th Cir. 1994), Harris v. Coweta Cty., 21 F.3d 388, 393 Defendants contend that the contours of the law were not sufficiently defined to put them on notice that 12 In passing, Plaintiff cites Hinson v. Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999), for the proposition that qualified immunity does not apply to private medical personnel who contract with the state to provide medical care to prisoners. Because Defendant Nicolou's qualified immunity claims presently fail on their merits, the Court has assumed for the sake of its analysis, without deciding, that Defendant Nicolou was a government official entitled to assert the defense of qualified immunity. 20 their respective conduct was unconstitutional.13 The Court disagrees. Here, Defendant Nicolou's qualified immunity defense on the facts as pled by Plaintiff. to couch Plaintiffs' or "error alleged claim in are sufficient against Defendant Nicolou's attempts claims as a "difference in medical opinion" judgment" facts fails Defendant misleading. to state Nicolou a for Rather, Plaintiff has deliberate indifference a of variety reasons, including intentionally failing or refusing to obtain or provide medical treatment, delaying treatment, providing inadequate or inappropriate diagnosis or treatment, take an grossly deciding to easier but less efficacious course of treatment, and/or providing medical treatment that was so cursory as to amount to no medical treatment at all, all prohibited as of January 2015.14 of which were clearly It simply cannot be argued in 13 (See, e.g., Doc 35-1, at 25 ("There is no clearly established law holding that an error in judgment in providing treatment (which is alleged but which P.A. Nicolou denies) is a basis for liability under the Eighth Amendment and section 1983. . . . There is no clearly established law holding that a correctional officer such as Sgt. Anthony has a constitutional duty to override the decision of a medical professional.").) 14 See, e.g., Mandel, 888 F.2d at 789 (failure of physician's assistant to apprise his superior of prisoner's broken leg, obtain an X-ray of prisoner's leg, or to have prisoner examined by a doctor or taken to a hospital may be deliberate assistant indifference); examined inmate Carswell, on three 854 F.2d at different 457 (though occasions and physician's gave inmate laxatives and pain medication, physician's assistant could still be found to have been deliberately indifferent by failing to advise supervising physician of prisoner's condition); Harper v. Lawrence Cty., Ala., 592 F.3d 1227, 1237 (11th Cir. 2010) (delayed or inadequate treatment of alcohol withdrawal is unlawful); Rogers, 792 F.2d at 1062 (even if doctor provided a period of attentive, competent care to prisoner, one episode of grossly incompetent or inadequate medical care would be sufficient to constitute deliberate indifference); Ancata, 769 F.2d at 704 (medical staffs' cursory treatment of detainee's obvious medical need may amount to deliberate indifference); see also McElligott, 182 F.3d at 1255; Fn. 5-9, supra. 21 good faith Defendant that, Nicolou if Plaintiff's was not on allegations notice that prove true, his conduct defense also was prohibited by the Eighth Amendment. Defendant at this a stage. deliberate variety medical to Anthony's of immunity Plaintiff has alleged facts indifference theories, treatment, medical qualified care, claim against including isolated confinement and/or failure to sufficient to state Defendant failure or so fails Anthony refusal as monitor, to to of a obtain prevent all on access which were clearly established as violating of the Eighth Amendment as of January 2015.15 Defendant Anthony's argument that there is no precedent that would put him on notice of his duty to "override" the decisions of GSP's medical Circuit's holding in Goebert. Further, as inference of previously knowledge staff See Goebert, noted, of is belied by the this the 510 F.3d at 1327-29. argument medical Eleventh is staffs' based on an decisions by Defendant Anthony that is not supported by the facts as alleged by Plaintiff. (See Am. Compl. 15 58-61.) Accordingly, as with 15 See, e.g., Goebert, 510 F.3d at 1327-29 (prison guard had "duty to look into the matter" and not simply refer prisoner back to the same medical staff that she alleged had been ignoring her requests for aid); Brown, 894 F.2d at 1539 (guards' failure and/or delay in obtaining medical treatment for prisoner's broken foot may constitute deliberate indifference); Jarrard, 786 F.2d at 1087 (superintendent's authorization and imposition of isolation which "effectively placed medical attention beyond constitute deliberate (officer's failure to indifference); Snow properly monitor ex rel. suicidal [prisoner's] Snow, 420 detainee deliberate indifference); Lancaster v. Monroe Cty., Ala., reach" may F.3d at 1270 could constitute 116 F.3d 1419, 1426 (11th Cir. 1997) ("[S]heriffs and jailers cannot place or keep a chronic alcoholic in jail without any medical supervision, when the defendants are aware that withdrawal." Cir. the alcoholic is suffering from a (citing Morrison v. Washington County, 1983)). 22 severe form 700 F.2d 678, of alcohol 686 (11th Defendant Nicolou, Defendant if Anthony Plaintiff's had fair allegations warning that prove his true, conduct was as the prohibited by the Eighth Amendment. IV. At this Court for concludes fact taking that deliberate Defendants' not stage, CONCLUSION Plaintiff's allegations Plaintiff has indifference claims definitively of against stated a Defendants qualified immunity fail. decide, deliberately sufficiently however, indifferent to whether Mr. true, and that Court The does Defendants Davison's claim were medical in needs, and as such, whether qualified immunity is truly unavailable to Defendants. Whether Defendants actually perceived Mr. Davison's serious medical risks and were in fact so grossly incompetent or inadequate in responding thereto so as to shock the conscience remains to be limited to the and the seen. four The corners amended complaint Defendants' Court's of to Dismiss Plaintiff's however, amended sufficient See Kothmann v. App!x 907, 911 (11th Cir. 2014). Motion review, Plaintiff's alleges motion to dismiss. present facts is complaint, to Rosario, survive 558 F. For these reasons, Defendants' Amended Complaint (doc. 35) is DENIED.16 16 Defendant Nicolou's prior Motion to Dismiss (doc. 12), which is based on near identical arguments as Defendants' present motion to dismiss, is also DENIED AS MOOT. Also, the Court need not address Defendants' Objection to Magistrate Judge Order (doc. 49), which sought an order from this Court reversing the United States Magistrate Judge's Order (doc. 48) denying Defendants' request to stay discovery in this matter pending the resolution of Defendants' present motion to dismiss. 23 ORDER October, ENTERED at Augusta, Georgia this <p?7^«day 2016. HONORABLE""J." RAW3&L HALL UNITED/STATES DISTRICT JUDGE SOUTHERN 24 DISTRICT OF GEORGIA of
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