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Cole v. White

United States District Court, S.D. Alabama, Southern Division

June 13, 2018

WAYNE COLE, Plaintiff,
v.
CYNTHIA STEWART WHITE, et al., Defendants.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or alternatively for summary judgment under Rule 56 (Docs. 19, 20) filed by Defendants Cynthia Stewart, [1] Jefferson Dunn, and Ruth Naglich (collectively, “the Movant Defendants”).[2] The Court has referred the motions to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (1/26/2018 & 1/30/2018 electronic referral). Plaintiff Wayne Cole has timely filed an omnibus response (Doc. 24) in opposition to the motion, and the Movant Defendants have filed a joint reply (Docs. 26, 27-1, 27-2)[3] to the response, along with objections (Doc. 25) to Cole's evidentiary submissions. (See Doc. 29 (construing the Movant Defendants' motion to strike as objections to exhibits)). The motions are now under submission. (See Doc. 23).

         I. Legal Standards

         In deciding a motion to dismiss under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted, ” the Court must construe the complaint in the light most favorable to the plaintiff, “accepting all well-pleaded facts that are alleged therein to be true.” E.g., Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013). “[G]enerally, the existence of an affirmative defense will not support a rule 12(b)(6) motion to dismiss for failure to state a claim. A district court, however, may dismiss a complaint on a rule 12(b)(6) motion when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint.” Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993).

         Moreover, because this case involves “a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity[, ]” the Court must independently “review[ the complaint], before docketing, if feasible or, in any event, as soon as practicable after docketing…” 28 U.S.C. § 1915A(a). On review, the Court must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). See also Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (under § 1915A, a “district court may dismiss sua sponte a complaint…”).

         “[A] motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) can be based upon either a facial or factual challenge to the complaint. If the challenge is facial, the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised. Accordingly, the court must consider the allegations in the plaintiff's complaint as true. []A ‘facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. ‘Factual attacks,' on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered. Furthermore, …the district court has the power to dismiss for lack of subject matter jurisdiction on any of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007) (citations and quotations omitted).

         “A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue of fact is ‘material' if it might affect the outcome of the suit under governing law and it is ‘genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013) (quotations omitted). “Summary judgment is only appropriate if a case is ‘so one-sided that one party must prevail as a matter of law.' ” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)) (citation omitted). However, a “ ‘mere scintilla' of evidence is insufficient; the non-moving party must produce substantial evidence in order to defeat a motion for summary judgment.” Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (per curiam). In other words, “there must be enough of a showing that the jury could reasonably find for that party … Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quotations omitted). “[C]ourts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” Jackson v. West, 787 F.3d 1345, 1352 (11th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007) (alteration adopted) (quotations omitted)). See also Allen, 121 F.3d 642, 646 (11th Cir. 1997) (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” (quotations omitted)). “The Court ‘must avoid weighing conflicting evidence or making credibility determinations.' ” Ave. CLO Fund, 723 F.3d at 1294 (quoting Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000)). However, “ ‘an inference based on speculation and conjecture is not reasonable.' ” Id. (quoting Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985)).

         II. Background

         A. Well-Pleaded Factual Allegations

         Cole is a 68-year-old inmate with the Alabama Department of Corrections (“ADOC”) who is in his 43rd year of incarceration serving two life sentences. Cole is hepatitis C positive, and has been for at least 5 years. He suffers continual dizziness, and his medical records show the likelihood of hepatic encephalothapy, and cirrhosis of the liver, and a possibility of hepatocellular carcinoma. (Doc. 1 at 2, ¶ 3).

         Cole was diagnosed with cataracts, and a detached retina in his left eye, on December 14, 2015. At that time, he was an inmate at ADOC's J. O. Davis Correctional Facility in Atmore, Alabama. Although surgery to save his vision was scheduled, in March 2016, and again in June 2016, the retinal surgery was cancelled and never took place, despite repeated requests from Cole and his family. Cole is now permanently blind in his left eye, and needs further cataract surgery in his right eye. Defendants refuse to schedule this surgery. (Id., ¶ 4). Cole was transferred from J. O. Davis in December of 2016, and is now currently an inmate at Limestone Correctional Facility in Harvest, Alabama. (Id. at 3, ¶ 7).

         Cole has suffered from Hepatitis C since at least 2013. (Id. at 3, ¶ 5). His medical records also show the likelihood of hepatic encephalothapy, and cirrhosis of the liver, and a possibility of hepatocellular carcinoma. (Id. at 2, ¶ 3). He has received little to no medical care for this condition. (Id. at 3, ¶ 5). He is in immediate need of the following:

• Treatment for Hepatitis C; specifically Harvoni, and/or other developing medications and treatments.
• A CAT scan, to screen for hepatic encephalothapy.
• An MRI, to screen for heptacellular carcinoma, the end stage of Hepatitis C.
• A liver biopsy, to screen for cirrhosis, and the treatment of a hepatologist.
• Cataract surgery on his right eye.
• Management of the interaction of his several co-morbidities.

(Id., ¶ 8).

         B. Causes of Action

         Based on the foregoing allegations, Cole asserts the following causes of action against all Defendants:

• Count I - a claim under 42 U.S.C. § 1983 for deliberate indifference to a serious medical need in violation of the “cruel and unusual punishment” clause of the Eighth Amendment to the United States Constitution, [4] based on the Defendants' alleged deliberate indifference to Cole's serious medical needs stemming from his cataracts, retinal detachment, and subsequent blindness.
• Count II - a claim under § 1983 for deliberate indifference to a serious medical need in violation of the “cruel and unusual punishment” clause of the Eighth Amendment, based on the Defendants' alleged deliberate indifference to Cole's serious medical needs stemming from hepatitis C, including the cascading medical problems from hepatitis C.
• Count III - a claim under § 1983 for deliberate indifference to a serious medical need in violation of the “cruel and unusual punishment” clause of the Eighth Amendment, based on the Defendants' alleged deliberate indifference to Cole's serious medical needs stemming from his co-morbities of blindness, dizziness and the cascading effects of hepatitis C.
• Count IV - a claim for discriminatory denial of medical services in violation of the Americans with Disabilities Act (“ADA”).
• Count V - a claim for discrimination in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.[5]

(Id. at 5 - 9).

         III. Analysis

         A. Article III Jurisdiction

         Dunn and Naglich also assert that the Court lacks Article III jurisdiction to hear Cole's claims because Cole “has not alleged a concrete injury and thus lacks standing…and/or that there is any causal connection between denial of services and Commissioner Dunn and Associate Commissioner Naglich.” (Doc. 20 at 6 -7). See Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1001 (11th Cir. 2016) (The “irreducible constitutional minimum of standing” comprises three elements: injury in fact, causation, and redressability.” (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992))). “A plaintiff has injury in fact if he suffered an invasion of a legally protected interest that is concrete, particularized, and actual or imminent.” Nicklaw, 839 F.3d at 1002 (citing Lujan, 504 U.S. at 560). Cole clearly alleges that, due to the Defendants' failure to schedule retinal surgery, he is now “permanently blind in his left eye.” (Doc. 1 at 2, ¶ 4). He has also ...


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