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Glover v. Corizon Medical Service

United States District Court, N.D. Alabama, Jasper Division

March 1, 2017

A.C. GLOVER, Plaintiff,
v.
CORIZON MEDICAL SERVICE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         A.C. Glover, an Alabama state prisoner acting pro se, filed this action pursuant to 42 U.S.C. § 1983, alleging that Corizon Medical Service, Dr. David Pavlakovic, and a Director Clabo, Nurse Christian, and Ms. Kirk[1] exhibited deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. Doc. 1. After the magistrate judge assigned to the case entered a report recommending the dismissal of all claims, see doc. 11, Glover timely filed objections, see doc. 13. For the reasons stated below, Glover's objections are due to be sustained solely as to Glover's claims against Clabo, Christian, and Kirk for failing to assist him with getting in and out of the shower and bed despite their subjective knowledge of his repeated falls. In all other respects, Glover's objections are due to be overruled.

         I. GLOVER'S ALLEGATIONS

         As discussed in the Report and Recommendation, Glover alleges that, while incarcerated, Dr. Pavlakovic performed hip replacement surgery on Glover and that after the surgery Glover was subsequently returned to the Bibb County Correctional Facility's health care unit. Doc. 1 at 4. Glover's claims stem from his post-surgery care after his return to the health care unit and issues related to a defibrillator device he received at St. Jude Medical Center prior to his hip surgery. Id. As related to the defibrillator, Glover alleges that Dr. Pavlakovic “never visited with [him]” after his surgery, and “never provided [him] with a heart monitor . . . to monitor the discharges of [his] defibrillator.” Id. at 5. Glover further alleges that when he complained to Nurse Christian about these issues, she either ignored his requests for assistance or directed him to submit a sick call slip. Id. Similarly, when Glover complained to Clabo and Kirk, “they refuse[d] to help [him]” and told him that “St. Jude should have provided [the monitor].” Id.

         With respect to the post-hip surgery care, Glover alleges that he repeatedly fell and “complained of falling several times to the defendants Clabo, Christian, and Kirk.” Id. at 5-6. Allegedly, these defendants purportedly refused to personally assist him or schedule physical therapy services for him, and “told [him] [that he] should let the [other] inmates help [him]” in and out of the shower and bed. Id. Finally, Glover alleges that “[i]t is a[n] undisputed fact the [individual] defendants will not physically touch a[n] African American patient that is housed in the infirmary at Bibb County.” Id. at 6-7.

         II. ANALYSIS

         Glover raises several objections to the magistrate judge's Report and Recommendation, which the court addresses below.

         A. The magistrate judge correctly relied on 28 U.S.C. § 1915.

         Glover challenges the magistrate judge's recommendation that the court dismiss Glover's claims pursuant to 28 U.S.C. § 1915. According to Glover, 28 U.S.C. § 1915A(b)(1) is “not the correct authority to seek dismissal, as [Glover] has long been granted the right to proceed in Forma Pauperis.” Doc. 13 at 1. The court disagrees. Section 1915A(b)(1) provides that the court must “dismiss the complaint or any portion of the complaint” either “before docketing” or “as soon as practicable after docketing” if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” § 1915A(b)(1) (emphasis added). Moreover, § 1915(e)(2)(B)(ii), upon which the magistrate judge also relied, see doc. 11 at 2, provides, in pertinent part, that the court “shall dismiss the case [of any person proceeding in forma pauperis] at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” § 1915(e)(2)(B)(ii) (emphasis added). In other words, § 1915 allows the court to dismiss claims as soon as the court becomes aware that the claims lack merit. Accordingly, Glover's argument that the court improperly used § 1915 as a vehicle to recommend dismissal is OVERRULED.

         B. The magistrate judge properly denied Glover discovery.

         Glover objects next to the magistrate judge's order denying his request for discovery to determine the “complete names of all the defendants, and their gender approx. age, race, and their official position.” Doc. 13 at 2. The court agrees with the magistrate judge that Glover's request to conduct discovery is premature. See, e.g., Spivey v. Stevens, No. 5:11-cv-81(MTT), 2011 U.S. Dist. LEXIS 103213, at *1 (M.D. Ga. July 14, 2011) (“Plaintiff's requests are premature at this time because the Defendants have not yet filed an answer or dispositive motion.”). Glover's objection is therefore OVERRULED.

         C. The claims related to the defibrillator fail.

         As to Glover's claim that defendants failed to provide him with a heart monitor, the magistrate judge concluded that Glover's allegations “boil down to a difference of opinion between medical professionals as to post-operative methods.” Doc. 11 at 9. Glover objects that “his defibrillator was discharging and was not properly monitored by the defendants, and [that] said monitor was ordered by medical officials at St. Jude Medical Center.” Doc. 13 at 2; see also Id. at 3. This objection is OVERRULED because, as an initial matter, Glover fails to allege either that his defibrillator was discharging improperly (i.e., malfunctioning), or that he informed defendants that he believed it was malfunctioning, and Glover's request for a heart monitor as a preventive measure does not equate to an objectively serious medical need. See Bumpus v. Watts, 448 F. App'x 3, 6 (11th Cir. 2011) (“The district court did not err by dismissing Bumpus's Eighth Amendment complaint for failure to state a claim. Because Bumpus only asserted that routine dental care would prevent future dental problems, he has failed to show an objectively serious need.”). Moreover, even accepting Glover's allegations as true, the questioned conduct must involve “something more than a medical judgment call” to constitute deliberate indifference. See Peterson v. Willie, 81 F.3d 1033, 1038 (11th Cir. 1996).

         D. The claims related to Dr. Pavlakovic's alleged failure to visit Glover and Clabo, Christian, and Kirk's alleged failure to ...


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