United States District Court, N.D. Alabama, Western Division
November 25, 2014
GILBERT J. WALLACE, Plaintiff,
Dr. LEE HAMMONTREE, et al., Defendants
Gilbert J Wallace, Plaintiff, Pro se, Brent, Al.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
T. MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.
On September 12, 2014, Gilbert J. Wallace, hereinafter referred to as the plaintiff, filed a pro se complaint on the form normally used by prisoners seeking damages and/or injunctive relief pursuant to 42 U.S.C. § 1983 for abridgements of rights, privileges, or immunities afforded under the Constitution or laws of the United States. Named as defendants in the complaint are Dr. Lee Hammontree; Dr. James Whitley; Dr. James Butler; Corizon, Inc.; and Brookwood Medical Center. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).
I. Standard of Review:
The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 804, 110 Stat. 1321, and 28 U.S.C. § 1915A, requires this court to screen complaints filed by prisoners against officers or employees of governmental entities and to dismiss the complaint or any portion of the complaint that it finds frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Thus, under § 1915A, the court may sua sponte dismiss a prisoner's complaint prior to service. Nevertheless, in order to protect a pro se prisoner's right of access to the courts, these complaints are read by less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984); Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976).
II. Plaintiff's Factual Allegations:
The plaintiff is a prisoner in the custody of the Alabama Department of Corrections and is presently housed in the Bibb Correctional Facility. He alleges that in March of 2012 he began having stomach problems and underwent a series of tests while under the care of Dr. Hammontree, including ultra sounds, CAT scans, biopsies, and blood tests. As a result, the plaintiff was advised that he had cancer in one of his kidneys which would required its removal. Surgery to remove the kidney was performed thereafter.
The plaintiff alleges he was later informed by physicians at Brookwood Medical Center in February 2013 that he in fact had never had cancer and instead was suffering from " an abnormal swelling in [his] stomach." (Doc. 1 at 3). When he questioned the medical staff about how such a mistake could have occurred, he was told that he " still had a good kidney and could live well with just the one." (Id. at 4). He now seeks compensatory and punitive damages and " a new kidney" for the " negligent action of medical personnel" (Id. at 4).
To the extent the plaintiff attempts to assert a claim under § 1983, his complaint is without merit. The plaintiff can assert a valid constitutional claim for denial of adequate medical care only if he can show that the defendants have been deliberately indifferent, as opposed to merely negligent, in failing to address a serious medical need. To prove deliberate indifference requires a showing that the defendants had a subjective knowledge of a risk of serious harm, and disregarded that risk in a way which entails more than gross negligence. Easley v. Department of Corrections, ___ Fed.Appx ___, 2014 WL 5394530, at *7 (11th Cir. Oct. 24, 2014); citing Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010). Accordingly, neither accidental inadequacy, negligent diagnosis or treatment, nor medical malpractice demonstrate deliberate indifference. Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000); citing Estell v. Gamble, 429 U.S. at 104-05. In this instance, the plaintiff has alleged facts which fail to reach beyond the level of medical malpractice, " which is not actionable under the Eighth Amendment and § 1983." Maglio v. Bhadja, 257 Fed.Appx. 234, 236 (11th Cir. 2007). Mere medical malpractice is not actionable under § 1983.
To the extent the plaintiff's complaint can be read as asserting a medical malpractice or other state law claim, the magistrate judge recommends that the court decline to exercise supplemental jurisdiction over those claims. Accordingly, any state law claims should be dismissed, without prejudice, pursuant to 28 U.S.C. § 1367(c)(3).
Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS that the federal claims in this action be DISMISSED WITH PREJUDICE for failing to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b)(1).
Notice of Right to Object
Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982)( en banc ). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall 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. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
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 recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.
The Clerk is DIRECTED to mail a copy of the foregoing to the petitioner at his most recent address.