United States District Court, N.D. Alabama, Northeastern Division
SCOTT COOGLER UNITED STATES DISTRICT JUDGE
magistrate judge filed a report on October 27, 2017,
recommending the court decline jurisdiction over
plaintiff's Petition for Injunction, deny his requests
for preliminary and permanent injunctive relief, and dismiss
this action without prejudice for failing to state a claim
upon which relief can be granted pursuant to 28 U.S.C. §
1915A(b). (Doc. 22). The plaintiff filed objections to the
report and recommendation. (Doc. 23).
argues “the ‘R&R'” is premature
because Federal Rules of Civil Procedure 8 and 12(b) state
that the parties, not the court, are to file pleadings
regarding claims and defenses. (Id. at 2). He
further contends “the ‘R&R'”
violates the Fourteenth Amendment because “it fails to
allow” service of a summons and complaint on the
defendants and fails to afford the defendants the
“opportunity” to move for dismissal on pleading
Court overrules plaintiff's objections. The Prison
Litigation Reform Act requires the court to screen a
prisoner's complaint against government employees
“before docketing” or “as soon as
practicable” thereafter and also requires the court to
dismiss the complaint if it fails to state a claim upon which
relief can be granted. 28 U.S.C. § 1915A(a), (b)(1);
see Jones v. Bock, 549 U.S. 199, 202 (2007)
(“the PLRA mandates early judicial screening of
prisoner complaints”). Further, Rule 12(b)(6) governs
the § 1915A(b) standard for failure to state a claim.
Id. at 215 (“A complaint is subject to
dismissal for failure to state a claim if the allegations,
taken as true, show the plaintiff is not entitled to
relief.”) Finally, there exists no Supreme Court
precedent to support the plaintiff's assertion that
§ 1915A is constitutionally suspect on Fourteenth
addition, the plaintiff objects to the dismissal of his claim
that “the defendants” were deliberately
indifferent to his serious medical needs. (Doc. 23 at 3-7).
Quoting several excerpts from the magistrate judge's
report and recommendation, the plaintiff insists that when
the facts contained in those quotations are taken as true, he
has plausibly stated an Eighth Amendment claim for the
“‘serious injury'” to his back,
i.e., “‘herniated discs.'”
(Id. at 4-7) (quoting Doc. 22 at 6-10, 15-16, 18).
Plaintiff identified defendants Nurse McIntosh, Nurse
Practitioner Dryer, and Dr. Robbins in the excerpts.
(Id. at 4).
argues the results of an April 19, 2016, MRI prove he
“injured his back working in the prison laundry”
on April 15, 2015, and also prove defendants McIntosh, Dryer,
and Robbins treated him “with disregard . . . to his
im[m]ediate suffering and needs” and set out “to
discredit, ” “threaten, ” and
“outright lie” to him. (Id. at 3-4;
see Doc. 19 at 26 (wherein Dr. Robbins informed
plaintiff that the MRI revealed a bulging disc was pressing
on his sciatic nerve)). He also declares “the
defendants” tried “to cover up” his injury
by providing “unnecessary treatments, without adhering
to the professional standards of tests, such as an
MRI.” (Id. at 6).
plaintiff's objections lack merit. The excerpts plaintiff
chose to support his objections include a May 15, 2015,
opinion by a Ms. Means that plaintiff suffered nerve damage,
and a July 22, 2015, record indicating that one Dr. Pavirov
refused to order a CT scan or MRI as requested by the
plaintiff. (Doc. 23 at 4). As stated previously, plaintiff
did not name Means and Pavirov as defendants in his action.
Additionally, the plaintiff ignores that Means and Pavirov
possessed the results of his April 30, 2015, x-ray when they
examined him and omits that Dr. Pavirov diagnosed him with
“sacroiliac joint pain.” (Doc. 19 at 18-19).
Means treated the plaintiff's pain with steroids and
Pavirov prescribed Ibuprofen. (Id. at 19).
extent plaintiff argues that Means' and Pavirov's
treatment establishes defendant McIntosh's deliberate
indifference to his need for emergent care on April 15, 2015,
the Court overrules his objections. The magistrate judge
correctly reported that “defendant McIntosh made a
medical judgment call as to the nature and extent of his
injury” on April 15, 2015, and treated him accordingly.
(Doc. 22 at 26) (quoting McElligott v. Foley, 182
F.3d 1248, 1259 (11th Cir. 1999) (“a plaintiff must
show a defendant's treatment involves “something
more than a medical judgment call, an accident, or an
inadvertent failure.”) (internal citation omitted).
plaintiff also argues defendant Dryer's deliberate
indifference to his serious medical needs is plausible
because Dryer told him there was nothing wrong with him and
accused him of medication-seeking during an August 15, 2015,
teleconference. (Doc. 23 at 4) (citing Doc. 22 at
The plaintiff's objection lacks merit. He declares
defendant Dryer is a Mental Health Nurse Practitioner who
assessed his complaints of depression, which purportedly
surfaced because plaintiff did not have treatment for his
back injury during the August 15, 2015, teleconference. (Doc.
19 at 6, 19-20). As a Mental Health Nurse Practitioner, Dryer
was not responsible for and had no personal involvement in
the medical care provided to the plaintiff for his back. The
plaintiff knew that he needed to file a sick call request for
medical attention if he needed follow-up care for
his back because personnel instructed him to do so
repeatedly. (Id. at 18-19). He also knew the medical
staff, not the mental health staff, was charged with treating
his back injury. (Id.). As such, there are no facts
in the plaintiff's amended complaint that plausibly state
a claim against defendant Dryer for deliberate indifference
to his serious medical needs.
objections to the dismissal of his medical care claim against
Dr. Robbins also lack merit. Robbins did not begin to treat
the plaintiff until January 10, 2016, some nine months after
he fell in the laundry room. (Id. at 21). On that
date, Robbins prescribed a steroid, an NSAID, and a muscle
relaxer for his complaints of back pain. (Id.). When
the plaintiff continued to complain, Robbins ordered a CT
scan on February 26, 2016. (Id. at 22-23). Based on
the results of the CT scan, Dr. Robbins arranged for the
plaintiff to consult with an outside specialist and, other
than a recommendation the plaintiff continue taking opiates,
Robbins followed that specialist's recommendations to the
letter. (Id. at 23-27, 30-31). Robbins also
continually prescribed the plaintiff steroids, NSAIDS, muscle
relaxers, neuropathic analgesics, anti-depressants, and
possibly opiates in response to his complaints of back pain.
(Id. at 21-23, 29-30).
objections, plaintiff points to an excerpt of the magistrate
judge's report citing his allegation that he received a
back brace on June 9, 2016, although he had requested the
back brace since the date of his April 15, 2015, injury.
(Doc. 23 at 4). Again, Robbins did not begin to treat the
plaintiff until January 10, 2016, and plaintiff never alleges
that Robbins denied any requests for a back brace. (Doc. 19
at 21). Rather, he simply alleges that Robbins refused to
renew his opiate prescription on May 16, 2016, although he
did order a back brace. (Id. at 26). Considering
these allegations and all of the other ongoing medical care
Robbins provided, the plaintiff failed to state a claim
against defendant Robbins for any supposed delay in
prescribing a back brace.
dedicates his objections generally to complaining that
deliberate indifference is plausible because defendants did
not follow the “standard of care” when they
failed to immediately order an MRI and provided
“unnecessary treatments.” (Doc. 23 at 5-6). These
objections amount to a difference of opinion between him and
the medical defendants. Such allegations do not state an
actionable Eighth Amendment claim. See Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (“a
simple difference in medical opinion between the prison's
medical staff and the inmate as to the latter's diagnosis
or course of treatment [cannot] support a claim of cruel and
plaintiff lodges a conclusory argument that the defendants
refused to adequately treat his back injury because they
“believed” he “was otherwise attempting to
use [this] legal suit to exact revenge upon them.”
(Doc. 23 at 3). The plaintiff averred no such claim in his
amended complaint (doc. 19 at 9-16), and the magistrate judge
expressly instructed him that “[objections should not
contain new allegations, present additional evidence, or
repeat legal arguments.” (Doc. 22 at 62). Accordingly,
the court will not consider this argument.
carefully reviewed and considered de novo all the
materials in the court file, including the report and
recommendation, and the objections thereto, the court hereby
ADOPTS the magistrate judge's report and
ACCEPTS the recommendation. Therefore, in
accordance with 28 U.S.C. § 1915A(b), the Court declines
jurisdiction over the plaintiffs Petition for Injunction,
denies his requests for a preliminary and permanent
injunction are ...