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White v. Cochran

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

August 20, 2018

EDWIN E. WHITE, Plaintiff,
v.
SHERIFF SAM COCHRAN, Defendant.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a Mobile County Metro Jail (“Metro Jail”) pretrial detainee proceeding pro se and in forma pauperis, began this action by filing a complaint under 42 U.S.C. § 1983.[1] Now, he seeks to amend his complaint by adding Naph-Care as a Defendant. Plaintiff's “motion to amend Naph-Care to civil suit inadequate medical” (Doc. 40) and “motion to amend new evidence and brief” (Doc. 41) (jointly “motion to amend”) have been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen LR 72(a)(2)(R). After review of the motion to amend, it is recommended that Plaintiff's motion to amend (Docs. 40, 41) be denied.

         I. Nature of Proceedings.

         A. Complaint. (Doc. 1).

         Plaintiff filed a § 1983 complaint against Defendant Sheriff Sam Cochran for lack of sanitation at the Metro Jail. (Doc. 1). Plaintiff complained that he had to live in unsanitary conditions which caused him and other inmates to develop a fungus on their feet. (Id. at 4). A report and recommendation was entered sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for the dismissal of his action without prejudice for failure to state a claim upon which relief can be granted. (Doc. 14). Over plaintiff's objection (Doc. 15), the report and recommendation was adopted (Doc. 16), and his action was dismissed without prejudice. (Doc. 17). Plaintiff appealed the judgment. (Doc. 18).

         B. First Amended Complaint. (Doc. 34).

         The Eleventh Circuit Court of Appeals dismissed his appeal. (Doc. 29 at 9). But, in its opinion, the Eleventh Circuit noted that Plaintiff could have been given an opportunity to amend his complaint and referred to an amended complaint that he filed with the Eleventh Circuit, remarking that the amended complaint “still fails to raise a plausible claim of unconstitutional confinement conditions.” (Id. at 8).

         The consequence of the Eleventh Circuit's opinion was Plaintiff filing in this Court a “motion to reconsider and modify an order for an adequate complaint under color of state 42 U.S.C. § 1983.” (Doc. 31). Chief Judge DuBose granted Plaintiff's motion for reconsideration and noted in her order that the proposed amended complaint, [2] while not a model of clarity, contained more detailed allegations and additional factual claims about “the shower, rash, foot fungus, sewage leak issues and contaminated water.” (Id. at 4). She further observed that the allegations may support a § 1983 claim, but at this point, she could not determine if the amended complaint was futile. (Id. at 4-5). Thus, Plaintiff was allowed to file his amended complaint. (Id. at 5).

         The amended complaint is lodged against Mobile County Sheriff Sam Cochran, Warden Terry Oliver, III, and Deputy Warden Sam Houston. (Doc. 34 at 8). Plaintiff alleges that he filed grievances with these Defendants about his conditions of confinement at the Metro Jail, which he details in his amended complaint as noted in Chief Judge DuBose's order. The amended complaint was signed by Plaintiff on December 8, 2018 and specifies that it relates to a time period from January, 2016 until he filed the original complaint on August 3, 2016. (Id. at 3, Doc. 1).

         II. Motion to Amend. (Docs. 40, 41).

         The matter before the Court at this time is Plaintiff's motion to amend (specifically, “motion to amend Naph-Care to civil suit inadequate medical” (Doc. 40) and “motion to amend new evidence and brief” (Doc. 41)). In the motion to amend Naph-Care (Doc. 40), he states that he wants to add Naph-Care as a defendant based on alleged inadequate medical care and malpractice. (Id. at 1). Plaintiff alleges that in 2016, Naph-Care did not give him the correct medical treatment for his feet and skin rash after they were contaminated with water containing toxins and sewage, leaving him in pain and with the skin coming off his foot. (Id. at 2). And from 2016 to 2018, Naph-Care allegedly overlooked giving him breathing treatments for chest pain caused by inadequate air vents, drinking bacteria-laden water, and breathing mold. (Id. at 3). However, the chief reason for filing this amended complaint against Naph-Care appears to have arisen from an incident when Plaintiff “slip[ped] and fell from a leaking toilet and raw sewage in [his] cell [when he came] out [to] the floor area with inadequate lighting[, he] injured his back, neck, and[] head[.]” (Id. at 3). According to him, Naph-Care and officers removed him from the floor without securing his neck and back. (Id.). No relief was requested in this document.

         In the “motion to amend new evidence and brief” (Doc. 41), he focuses on his fall in more detail. He alleges that on February 15, 2018, “he slip[ped] and fell in his cell from inadequate plumbing, sewage water[, and] inadequate lighting” after maintenance said the leak was fixed. (Doc. 41 at 1). When he fell, he “hit his back on a steel table and his head on the floor.” (Id.). Officer Petteway called Naph-Care as well as other officers. (Id. at 1-2). When he told them where he was hurt, medical personnel said that he needed to be moved and that it would hurt. (Id. at 2). Medical personnel removed him from his cell and placed him in a wheelchair without stabilizing his neck. (Id.). Nurses Rose, White, Lie, and Monroe lifted him into the wheelchair, and Officer Mollise pushed him to the clinic. (Id.).

         When Plaintiff arrived at the clinic, Officer Evans and Sergeant Nanton pushed him into a holding cell where he stayed for forty-five minutes before he could see a nurse. (Id. at 2). Nurse White told him that the “x-ray doctor” was not there and gave him ibuprofen for the pain. (Id.). Plaintiff was returned to a different cell and was placed on the floor even though he was injured. (Id.). He asked to be taken to the hospital, but his request was denied. (Id.).

         The next day, he awoke with blood coming from his nose, severe back pain, and neck pain, and he was spitting up blood. (Id. at 3). The grievance he filed about this was ignored. (Id.). The following day, he reported to Officer Wilson and medical personnel that he had back, neck and head pain and was spitting up blood. (Id.). Inmates told the floor officer of his situation, and Plaintiff sent grievances to Sam Cochran, Trey Oliver, Sam ...


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