United States District Court, N.D. Alabama, Jasper Division
A.C. GLOVER, Plaintiff,
CORIZON MEDICAL SERVICE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
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 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.
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.
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.
raises several objections to the magistrate judge's
Report and Recommendation, which the court addresses below.
The magistrate judge correctly relied on 28 U.S.C. §
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.
The magistrate judge properly denied 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
The claims related to the defibrillator fail.
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).
The claims related to Dr. Pavlakovic's alleged failure to
visit Glover and Clabo, Christian, and Kirk's alleged
failure to ...