United States District Court, S.D. Alabama, Southern Division
JOHNNY L. CAMERON, Plaintiff,
KIM THOMAS, et al., Defendants.
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
Johnny L. Cameron, a former prison inmate proceeding pro
se, filed his complaint under 42 U.S.C. §§
1983 and 1988. (Doc. 29 at 5-21). This action was referred to
the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 72(a)(2)(R), and is now before the undersigned on
Defendants' Motion for Summary Judgment. After careful
review of the pleadings, and for the reasons set out below,
it is ordered that Defendants' Motion for Summary
Judgment be granted in favor of Defendants
and that the claims asserted against Defendants Kim Thomas
and Corizon, Inc., be dismissed with
Summary of Allegations.
brings this action against former ADOC Commissioner Kim
Thomas (“Thomas”) and Corizon, Inc.
(“Corizon”) for inadequate medical care
(including denied or delayed access to doctors, medications,
and surgeries) while within the custody of the Alabama
Department of Corrections (“ADOC”). According to
Cameron, he suffers from diabetes, high blood pressure, and
has had bilateral knee and hip replacements in the past. On
October 31, 2003, he was transferred to Kilby Correctional
Facility (“Kilby”) from the county jail. (Doc. 29
at 11). During the intake procedure at Kilby, Cameron was
informed that the prison would not administer the prescribed
medications he brought with him from his free world primary
care doctor, orthopedic specialist, pain management
specialist, and psychiatrist. (Id.). The nursing
staff told him that it was ADOC's policy not to dispense
those types of medications, namely the prescription pain
medications. (Id.). However, he was informed by one
nurse that he would be placed on a list to see a doctor to
discuss his medical conditions and need for medications.
December 14, 2013, while incarcerated at Kilby, Cameron, who
walks with the assistance of forearm crutches, alleges he was
forced by a sergeant to enter the chow hall through the main
entrance, rather than the handicapped entrance. (Id.
at 11). While in the chow hall, Cameron fell to the floor
when his crutches slipped out from under him due to liquids
on the floor. (Id. at 11). An officer immediately
helped Cameron off the ground and had another inmate escort
him to the infirmary to be examined. (Id. at 11-12).
After waiting approximately one hour, the nursing staff
screened Cameron and contacted the institutional doctor by
telephone. (Id. at 12). The doctor prescribed Motrin
for Cameron's pain and ordered an x-ray scan to be taken
on the following Monday (two days later). (Id.).
Cameron was advised that he would see the doctor after the
x-ray was reviewed. (Id.). Diagnostic scans were
taken of Cameron's hip on December 16, 2013, but Cameron
was not called in to be examined by the doctor. (Id.
at 12, 190).
January 6, 2014, Cameron filed a medical grievance at Kilby
on the ground that he had yet to be seen by a doctor at Kilby
for his chronic pain and his December 14, 2013 fall.
(Id. at 12, 760). Cameron alleges that before
receiving a response to his grievance, he was transferred to
Fountain Correctional Facility (“Fountain”) on
January 14, 2014. (Id. at 760).
alleges that once he was incarcerated at Fountain, he filed
numerous sick call requests, grievances, and medical
complaints, but he was not examined by a doctor until March
2014. (Id. at 13). When Cameron saw the
institutional doctor on March 12, 2013, the institutional
doctor informed him that his medical jacket reflected that
Cameron's December 2013 x-ray showed there might be
“some damage” to his hip, but without prior scans
for comparison, it was impossible to know the extent.
(Id. at 13). As a result, the doctor ordered new
x-ray scans of Cameron's right hip. (Id. at
206). The new x-ray scans were compared to the prior x-ray
scans. The new x-ray scans showed migration of the prosthesis
into the right iliac bone. (Id.). Possible septic or
aseptic loosening were also noted. (Id.). On March
20, 2014, the institutional doctor referred Cameron to an
orthopedic specialist, Dr. Corbett. (Id. at 13,
later, on March 27, 2014, Dr. Corbett opined that
Cameron's right hip socket cup was out of place.
(Id. at 13). He recommended joint replacement
surgery, and referred Cameron to Dr. Sudakar Madanagopal at
South Alabama Medical Center for surgery. (Id.). The
surgical procedure to repair Cameron's dislocated
acetabulum cup was performed by Dr. Madanagopal on August 28,
2014. (Id.). Cameron claims he suffered extreme pain
during the months the surgery was delayed. (Id.). He
also contends that that this delay in treatment constituted
“cruel and unusual punishment, ” “torture,
” and “deliberate indifference to a serious
medical need.” (Id. at 14).
Cameron alleges he was denied or received delayed medical
treatment for kidney cysts after he reported having chills
and sweats the weekend of July 4, 2015. (Id. at 15).
According to Cameron, he informed a nurse of his symptoms at
pill call and she “pointed something at [him] from
behind a locked grill gate and said, ‘you don't
have a temp.'” (Id.). Cameron claims
subsequent thereto, on July 14 and 15, 2015, he began to
urinate blood. (Id.). He took a collected sample of
the urine to the infirmary where it tested positive for
blood. (Id.). However, the nurse told him to
“go back down the hall.” (Id.). A renal
ultrasound was conducted on July 20, 2015 and revealed
bilateral renal cysts. (Id.). Cameron alleges that
he was only prescribed a course of antibiotic treatment, and
that after urinating blood for three weeks, the bleeding
spontaneously stopped. (Id.).
addition, Cameron claims that his right knee replacement is
failing, that Defendants have been aware that he needs a
surgical repair for a year, and that they have refused to
provide him with the surgery recommended by the orthopedic
specialist. (Id. at 15-16). He claims that instead
of following the specialist's recommendation, ADOC and
Corizon sent him to someone else who recommended that he try
a knee brace. (Id. at 16).
Cameron alleges he was forced to sleep on a steel bunk with a
thin mat and was denied an egg crate mattress or hospital
mattress while incarcerated. (Id.). Cameron contends
that when he asked the medical staff at Kilby and Fountain
about an egg-crate mattress or a hospital mattress, he was
told that ADOC stopped them from doing that. (Id.).
He also asserts that an ADOC official at Kilby said, in
response to his mattress request, that he could not have one
because if he had not done what he did to be incarcerated, he
would not need one. Cameron maintains that this is the
prevailing attitude shared by ADOC and medical personnel, and
that given the condition of his hip, such treatment amounts
to cruel and unusual punishment. (Id.).
is suing Defendants in their official and individual
capacities, is seeking seeks monetary damages for the alleged
Eighth Amendment violations,  and is requesting a trial by
jury. (Id. at 8).
filed this action in December 2015 in the United States
District Court for the Middle District of Alabama. (Doc. 29
at 1). After Defendants Thomas and Corizon filed their
Answer, Special Report, and Supplemental Special Report (doc.
29 at 3), the Court concluded that because the bulk of
Cameron's claims relate to medical treatment he received
while incarcerated at Fountain, which is located within the
Southern District of Alabama, the case should be transferred
to this District. Notwithstanding objections by Cameron, the
case was to the Southern District of Alabama on May 10, 2016.
(Doc. 29 at 4, 803-811).
sought to amend his complaint to add additional Defendants,
but his request was denied because he failed to allege a
causal connection between the individuals he sought to add
and the alleged constitutional violations. The Court also
determined that an amendment at this juncture would be
prejudicial. (Doc. 47, 49, 50). Thus, the operative complaint
for this action is the original complaint filed in the Middle
District of Alabama, naming Defendants Corizon, Inc., and Kim
Court entered an order notifying the parties that
Defendants' Answer and Special Reports were being
converted into a motion for summary judgment, and giving them
an opportunity to file briefs and materials in support or
opposition. (Doc. 51). Cameron filed responses opposing
summary judgment (Docs. 35, 54). The motion for summary
judgment is now ripe for consideration.
Summary Judgment Standard.
Judgment is proper "if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); Garczynski v. Bradshaw, 573 F.3d 1158,
1165 (2009) ("[S]ummary judgment is appropriate even if
'some alleged factual dispute' between the parties
remains, so long as there is 'no genuine issue of
material fact.'" (emphasis omitted)).
party asking for summary judgment "always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
'pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any,' which it believes demonstrate the absence of a
genuine issue of material fact." Celotex, 477
U.S. at 323. The movant can meet this burden by presenting
evidence showing there is no dispute of material fact, or by
showing, or pointing out to, the district court that the
nonmoving party has failed to present evidence in support of
some element of its case on which it bears the ultimate
burden of proof. Id. at 322-24.
Once the moving party has met its burden, Rule 56(e)
"requires the nonmoving party to go beyond the pleadings
and by [its] own affidavits, or by the 'depositions,
answers to interrogatories, and admissions on file,'
designate 'specific facts showing that there is a genuine
issue for trial.'" Id. at 324. To avoid
summary judgment, the nonmoving party "must do more than
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). On the other hand, the evidence of the nonmovant must
be believed and all justifiable inferences must be drawn in
its favor. See Anderson, 477 U.S. at 255.
ThyssenKrupp Steel USA, LLC v. United Forming, Inc.,
926 F.Supp.2d 1286, 1289-90 (S.D. Ala. Jan. 29, 2013)
requirement to view the facts in the nonmoving party's
favor extends only to "genuine" disputes over
material facts. A genuine dispute requires more than
"some metaphysical doubt as to material facts."
Garczynski, 573 F.3d at 1165 (internal citations
omitted). A "mere scintilla" of evidence is
insufficient; the nonmoving party must produce substantial
evidence in order to defeat a motion for summary judgment.
Id. In addition, "[t]here is no burden upon the
district court to distill every potential argument that could
be made based upon the materials before it on summary
judgment." Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995). More
importantly, where "opposing parties tell two different
stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment." Scott v.
Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167
L.Ed.2d 686 (2007); see also Logan v. Smith, 439
Fed.Appx. 798, 800 (11th Cir. Aug. 29, 2011) ("In cases
where opposing parties tell different versions of the same
events, one of which is blatantly contradicted by the record-
such that no reasonable jury could believe it-a court should
not adopt the contradicted allegations." (citations
complaint, Cameron sets forth three grounds of alleged
constitutional violations by Defendants Corizon and Thomas:
Ground One: Denying access to see a doctor, delaying access
to needed serious medical care, treatment and surgery,
denying access to an orthopedic specialist, confiscating and
refusing to give medications prescribed by free-world
orthopedic pain specialist and psychiatrist.
Ground Two: Deliberate indifference to serious medical needs,
cruel and unusual punishment, deliberate indifference to pain
and suffering and needs of inmates with special conditions
and needs and treatments, and to the handicap.
Ground Three: Torturous, needless, and unjustified delay of
eight (8) months, in needed surgery to repair a painful
totally dislocated hip replacement socket cup (acetabular cup
revision) and extensive damage and torturous pain caused by
the delay and forced to hobble around on it for 8 months.
(Doc. 29 at 6-7). For purposes of clarity, Cameron's
claims have been regrouped based on the facts, allegations,
and defenses contained in the parties' pleadings. The
Court will now discuss each in turn.
The PLRA Bars Plaintiff's Claim Against Defendants
Because Plaintiff Failed to Exhaust His Administrative
their Motion for Summary Judgment, Defendants argue that
Cameron is barred from bringing this action due to his
failure to exhaust administrative remedies as required by the
Prisoner Litigation Reform Act ("PLRA"). The PLRA
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.
42 U.S.C. § 1997e(a). "Section 1997e(a) is intended
to force inmates to give authorities a chance to correct
constitutional violations before resorting to federal suit
and to prevent patently frivolous lawsuits." Horne
v. Nevil, 2017 WL 9486058 at *4, 2017 U.S. Dist. LEXIS
44613 at *9 (S.D. Ga. March 7, 2017). “Congress has
provided in §1997e(a) that an inmate must exhaust
irrespective of the forms of relief sought and offered
through administrative remedies.” Booth v.
Churner, 532 U.S. 731, 741 n.6, 121 S.Ct. 1819, 149
L.Ed.2d 958 (2001). Further, the exhaustion requirement of
the PLRA “applies to all inmate suits about prison
life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong, ” Porter v. Nussle, 534
U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), and is
required even if the available administrative remedies are
futile or inadequate. Harris v. Garner, 190 F.3d
1279, 1285-86 (11th Cir. 2005).
of all available administrative remedies is a precondition to
litigation and is mandatory. See Ross v. Blake, __
U.S. __, 136 S.Ct. 1850, 1853, 195 L.Ed.2d 117, 120 (2016)
("That mandatory language means a court may not excuse a
failure to exhaust, even to take "special
circumstances" into account.); Woodford v. Ngo,
548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)
("Exhaustion is no longer left to the discretion of the
district court, but is mandatory."). The Supreme Court
has noted that each prison sets its own administrative
remedies, Jones v. Bock, 549 U.S. 199, 218, 127
S.Ct. 910, 166 L.Ed.2d 798 (2007), and that "[p]roper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules because no adjudicative
system can function effectively without imposing some orderly
structure on the course of its proceedings."
Woodford, 548 U.S. at 90-91. Thus, prisoners must go
beyond merely filing a grievance and are required by the
PLRA's exhaustion requirement to "properly take each
step within the [prison's] administrative process,"
including appealing denials of relief. Johnson v.
Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005).
In order to determine whether Plaintiff fully exhausted his
available administrative remedies, the Court thus first
examines and consider [sic] both the Defendants' and the
Plaintiff's version of the facts, taking the
Plaintiff's version of the facts as true. Turner v.
Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). "If
in that light, the defendant is entitled to have the
complaint dismissed for failure to exhaust administrative
remedies, it must be dismissed." Id. If the
complaint is not subject to dismissal at the first step, then
the court shall proceed to make specific findings in order to
resolve disputed factual issues related to exhaustion.
Id. The defendants bear the burden of pleading and
proving that the plaintiff has failed to exhaust available
administrative remedies. See Jones v. Bock, 549 U.S.
199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
Shepard v. Fla. Dep't of Corr., 2017 U.S. Dist.
LEXIS 53046 at *24-25 (S.D. Fla. Apr. 5, 2017).
Supreme Court has specified three "circumstances in
which an administrative remedy, although officially on the
books, is not capable of use to obtain relief."
Ross, 136 S.Ct. at 1853. First, "an
administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as
a simple dead end - with officers unable or consistently
unwilling to provide any relief to aggrieved inmates."
Id. at 1859. "Next, an administrative scheme
might be so opaque that it becomes, practically speaking,
incapable of use." Id. Finally, a grievance
process is rendered unavailable "when prison
administrators thwart inmates from taking advantage of [it]
through machination, misrepresentation, or
intimidation." Id. at 1860. The law is also
well settled that "the question of exhaustion under the
PLRA [is] a 'threshold matter' that [the court must]
address before considering the merits of the case.”
Myles v. Miami-Dade Cnty. Corr. & Rehab.
Dep't, 476 Fed.Appx. 364, 366 (11th Cir. 2012)
(quoting Chandler v. Crosby, 379 F.3d 1278, 1286
(11th Cir. 2004)).
Eleventh Circuit has set out a two-part test to determine
whether or not a suit may be dismissed for failure to exhaust
administrative remedies. See Turner v. Burnside, 541
F.3d 1077, 1082 (11th Cir. 2008). First, a court “looks
to the factual allegations in the defendant's motion to
dismiss and those in the plaintiff's response, and if
they conflict, take the plaintiff's version of the facts
as true. If, in that light, the defendant is entitled to have
the complaint dismissed for failure to exhaust administrative
remedies, it must be dismissed.” Id. at 1082.
If the complaint is not subject to dismissal, then the court
“proceeds to make specific findings in order to resolve
the disputed factual issues related to exhaustion.”
current action, Defendants have submitted that Corizon
provides an administrative remedy for inmate complaints
through a grievance procedure. Defendants explain this
procedure as follows:
The grievance process is initiated when an inmate submits a
Medical Grievance form to [the Health Services Administrator
(HSA)] through the institutional mail system. After reviewing
Medical Grievance, [the HSA or her designee] then provide[s]
a written response [to the grievance] within approximately
ten (10) days of receipt of the Inmate Grievance. The written
response to a Medical Grievance is included on the bottom
portion of the same form containing an inmate's Inmate
Grievance. Below the portion of the form designated for the
"Response," the following notation appears:
IF YOU WISH TO APPEAL THIS REVIEW YOU MAY REQUEST A
GRIEVANCE APPEAL FORM FROM THE HEALTH SERVICES
ADMINISTRATOR. RETURN THE COMPLETED FORM TO THE ATTENTION OF
THE HEALTH SERVICE ADMINISTRATOR. YOU MAY PLACE THE FORM IN
THE SICK CALL REQUEST BOX OR GIVE IT TO THE SEGREGATION SICK
CALL NURSE ON ROUNDS.
As stated in the Medical Grievance forms, the second step of
the grievance process involves the submission of a formal
Grievance Appeal, at which time the inmate may be brought in
for one-on-one communication with the medical staff, the
Director of Nursing or [the Health Services Administrator]. A
written response to a formal Grievance Appeal is provided
within approximately five (5) days of receipt.
Medical Grievance forms are available from the correctional
officers at Fountain. Inmates are instructed to place
completed Medical Grievance forms in the sick call boxes
located throughout the facility. When received in the Health
Care Unit, Medical Grievance forms are sent to the Health
Services Administrator by the medical records clerk or
administrative assistant. The Health Services Administrator
reviews the grievances daily, provides a written response
within approximately ten (10) days at the bottom of the form
and returns a copy of the completed forms to the inmate. The
Health Services ...