UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION JAMES ARTHUR ALSTON, SR. ) ) Plaintiff, ) ) v. ) CV422-213 ) S. GREGORY, and DR. O. AWE, ) ) Defendants. ) ORDER The Court granted pro se plaintiff James Arthur Alston, Sr.’s request to proceed in forma pauperis. Doc. 6. He has now returned the required forms. See docs. 8 & 9. The Court, therefore, proceeds to screen his Complaint. 28 U.S.C. § 1915A. The Prison Litigation Reform Act requires federal courts to screen all civil cases in which a prisoner seeks redress from a governmental entity or official. See 28 U.S.C. § 1915A. The Court must dismiss any claims that: (1) are frivolous; (2) are malicious; (3) fail to state a claim upon which relief can be granted; or (4) seek monetary relief from a defendant immune from such relief. Id. Similarly, 42 U.S.C. § 1997e(c)(1) allows the Court to dismiss any prisoner suit brought “with respect to prison conditions,” for the same reasons stated in § 1915A.
Alston’s allegations concern the quality of medical care he has received while incarcerated at Coastal State Prison (“CSP”). See doc. 1
at 3-4. He alleges that he had a triple bypass operation in 2009 and an aortic valve replacement in 2018. Id. at 3. While he has been incarcerated at CSP, he has been suffering from cardiac symptoms. Id.
He alleges that the defendants know he suffers from heart disease, “but refuse to send [him] to the right doctor[,] a cardiologist.” Id. He alleges multiple appointments and contacts with the prison’s “Health Service.”
Id. He also alleges that Defendant Dr. Awe “sent [him] to Augusta Medical State Prison [sic],” in December 2021, for testing. Id. He has since had a telemedicine appointment with another doctor, Dr. Thornton.
Id. at 4. Finally, he alleges that, in July 2022, he was waiting on rescheduled testing at Augusta State Medical Prison. Id. He seeks unspecified monetary damages and “to make sure this [doesn’t] happen
to anyone else lock[ed] up in prison.” Id. Liberally construed, Alston’s Complaint implicates a claim that his medical care violates the Eighth Amendment. To offend the Eighth Amendment, a government official must display “deliberate indifference to the serious medical needs of prisoners . . . .” Estelle v. Gamble, 429
U.S. 97, 104 (1976). This requires that (1) the prisoner suffered a sufficiently serious medical need; (2) to which the defendants were
deliberately indifferent; (3) resulting in an injury. Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007). Whether a serious medical need existed is an objective standard. Milton v. Turner, 445 F. App’x 159, 161-
62 (11th Cir. 2011). However, whether defendants were deliberately indifferent is subjective and each defendant is “judged separately and on the basis of what that person knows.” Burnette v. Taylor, 533 F.3d 1325,
1331 (11th Cir. 2008). To allege deliberate indifference, a plaintiff must plead facts sufficient to show “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than [gross]
negligence.” Youmans v. Gagnon, 626 F.3d 557, 564 (11th Cir. 2010) (internal citations and quotation omitted). A prisoner’s mere disagreement with the type of medical treatment
he receives, however, is insufficient. See, e.g., Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985) (“Although [plaintiff/inmate] may have desired different modes of treatment, the care the jail provided did not amount to deliberate indifference.”); see also Estelle, 429 U.S. at 107 (“[T]he question whether an X-ray or additional diagnostic techniques or
forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like
measures, does not represent cruel and unusual punishment.”); Sifford v. Hall, 2016 WL 4578336, at *5 (S.D. Ga. Aug. 31, 2016) (refusal of referral to a cardiologist amounted to a “challenge [to defendant’s]
medical judgment but do not establish deliberate indifference.”). Even if the treatment an inmate receives was negligent, that’s not enough to support a § 1983 claim. See, e.g. Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991) (citing Estelle, 429 U.S. at 106) (“Mere incidents of [medical] negligence or malpractice do not rise to the level of constitutional violations.”).
Assuming that Alston’s prior cardiac surgeries, and the symptoms he alleges he is currently suffering, are objectively serious, he has not alleged more than negligence or malpractice. He has, perhaps, alleged
sufficient facts to support defendants’ subjective knowledge of his condition, but he also alleges that treatment has been and, as of July 2022, is being provided. His subjective disagreement with the tests ordered and the failure to refer him to a specific specialist does not allege that either defendant was deliberately indifferent. He has, therefore,
failed to state a deliberate-indifference claim. Although he fails to state a viable claim, “when a more carefully
drafted complaint might state a claim, a district court should give a pro se plaintiff at least one chance to amend the complaint before the court dismisses the action.” Jenkins v. Walker, 620 F. App’x 709, 711 (11th Cir.
2015). The Court will, therefore, afford Alston an opportunity to supplement his allegations to address the issues discussed above. Alston is DIRECTED to submit his Amended Complaint no later than January
6, 2023. He is advised that his amended complaint will supersede his original pleadings and therefore must be complete in itself. See Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1345 n. 1 (11th
Cir. 1999) (“An amended complaint supersedes an original complaint”); Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 n. 6 (11th Cir. 1982). The Clerk is DIRECTED to
enclose a blank copy of Form Pro Se 14 (Complaint for Violation of Civil Rights (Prisoner)) with the service copy of this Order for Alston’s convenience.
Finally, the Court must assess Alston’s filing fee. See 28 U.S.C. § 1915(b). Plaintiff’s prisoner trust fund account statement reflects $0.00
in average monthly deposits and balance. Doc. 8 at 1. Based upon his furnished information, he does not owe an initial partial filing fee. See 28 U.S.C. § 1915(b)(1) (requiring an initial fee assessment “when funds
exist,” under a specific 20 percent formula). His account custodian shall set aside 20 percent of all future deposits to the account, then forward those funds to the Clerk each time the set aside amount reaches $10,
until the balance of the Court’s $350 filing fee has been paid in full.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION JAMES ARTHUR ALSTON, SR. ) ) Plaintiff, ) ) v. ) CV422-213 ) S. GREGORY, and DR. O. AWE, ) ) Defendants. ) ORDER The Court granted pro se plaintiff James Arthur Alston, Sr.’s request to proceed in forma pauperis. Doc. 6. He has now returned the required forms. See docs. 8 & 9. The Court, therefore, proceeds to screen his Complaint. 28 U.S.C. § 1915A. The Prison Litigation Reform Act requires federal courts to screen all civil cases in which a prisoner seeks redress from a governmental entity or official. See 28 U.S.C. § 1915A. The Court must dismiss any claims that: (1) are frivolous; (2) are malicious; (3) fail to state a claim upon which relief can be granted; or (4) seek monetary relief from a defendant immune from such relief. Id. Similarly, 42 U.S.C. § 1997e(c)(1) allows the Court to dismiss any prisoner suit brought “with respect to prison conditions,” for the same reasons stated in § 1915A.
Alston’s allegations concern the quality of medical care he has received while incarcerated at Coastal State Prison (“CSP”). See doc. 1
at 3-4. He alleges that he had a triple bypass operation in 2009 and an aortic valve replacement in 2018. Id. at 3. While he has been incarcerated at CSP, he has been suffering from cardiac symptoms. Id.
He alleges that the defendants know he suffers from heart disease, “but refuse to send [him] to the right doctor[,] a cardiologist.” Id. He alleges multiple appointments and contacts with the prison’s “Health Service.”
Id. He also alleges that Defendant Dr. Awe “sent [him] to Augusta Medical State Prison [sic],” in December 2021, for testing. Id. He has since had a telemedicine appointment with another doctor, Dr. Thornton.
Id. at 4. Finally, he alleges that, in July 2022, he was waiting on rescheduled testing at Augusta State Medical Prison. Id. He seeks unspecified monetary damages and “to make sure this [doesn’t] happen
to anyone else lock[ed] up in prison.” Id. Liberally construed, Alston’s Complaint implicates a claim that his medical care violates the Eighth Amendment. To offend the Eighth Amendment, a government official must display “deliberate indifference to the serious medical needs of prisoners . . . .” Estelle v. Gamble, 429
U.S. 97, 104 (1976). This requires that (1) the prisoner suffered a sufficiently serious medical need; (2) to which the defendants were
deliberately indifferent; (3) resulting in an injury. Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007). Whether a serious medical need existed is an objective standard. Milton v. Turner, 445 F. App’x 159, 161-
62 (11th Cir. 2011). However, whether defendants were deliberately indifferent is subjective and each defendant is “judged separately and on the basis of what that person knows.” Burnette v. Taylor, 533 F.3d 1325,
1331 (11th Cir. 2008). To allege deliberate indifference, a plaintiff must plead facts sufficient to show “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than [gross]
negligence.” Youmans v. Gagnon, 626 F.3d 557, 564 (11th Cir. 2010) (internal citations and quotation omitted). A prisoner’s mere disagreement with the type of medical treatment
he receives, however, is insufficient. See, e.g., Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985) (“Although [plaintiff/inmate] may have desired different modes of treatment, the care the jail provided did not amount to deliberate indifference.”); see also Estelle, 429 U.S. at 107 (“[T]he question whether an X-ray or additional diagnostic techniques or
forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like
measures, does not represent cruel and unusual punishment.”); Sifford v. Hall, 2016 WL 4578336, at *5 (S.D. Ga. Aug. 31, 2016) (refusal of referral to a cardiologist amounted to a “challenge [to defendant’s]
medical judgment but do not establish deliberate indifference.”). Even if the treatment an inmate receives was negligent, that’s not enough to support a § 1983 claim. See, e.g. Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991) (citing Estelle, 429 U.S. at 106) (“Mere incidents of [medical] negligence or malpractice do not rise to the level of constitutional violations.”).
Assuming that Alston’s prior cardiac surgeries, and the symptoms he alleges he is currently suffering, are objectively serious, he has not alleged more than negligence or malpractice. He has, perhaps, alleged
sufficient facts to support defendants’ subjective knowledge of his condition, but he also alleges that treatment has been and, as of July 2022, is being provided. His subjective disagreement with the tests ordered and the failure to refer him to a specific specialist does not allege that either defendant was deliberately indifferent. He has, therefore,
failed to state a deliberate-indifference claim. Although he fails to state a viable claim, “when a more carefully
drafted complaint might state a claim, a district court should give a pro se plaintiff at least one chance to amend the complaint before the court dismisses the action.” Jenkins v. Walker, 620 F. App’x 709, 711 (11th Cir.
2015). The Court will, therefore, afford Alston an opportunity to supplement his allegations to address the issues discussed above. Alston is DIRECTED to submit his Amended Complaint no later than January
6, 2023. He is advised that his amended complaint will supersede his original pleadings and therefore must be complete in itself. See Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1345 n. 1 (11th
Cir. 1999) (“An amended complaint supersedes an original complaint”); Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 n. 6 (11th Cir. 1982). The Clerk is DIRECTED to
enclose a blank copy of Form Pro Se 14 (Complaint for Violation of Civil Rights (Prisoner)) with the service copy of this Order for Alston’s convenience.
Finally, the Court must assess Alston’s filing fee. See 28 U.S.C. § 1915(b). Plaintiff’s prisoner trust fund account statement reflects $0.00
in average monthly deposits and balance. Doc. 8 at 1. Based upon his furnished information, he does not owe an initial partial filing fee. See 28 U.S.C. § 1915(b)(1) (requiring an initial fee assessment “when funds
exist,” under a specific 20 percent formula). His account custodian shall set aside 20 percent of all future deposits to the account, then forward those funds to the Clerk each time the set aside amount reaches $10,
until the balance of the Court’s $350 filing fee has been paid in full. In the event plaintiff is transferred to another institution, his present custodian shall forward a copy of this Order and all financial information
concerning payment of the filing fee and costs in this case to plaintiff's new custodian. The balance due from plaintiff shall be collected by the custodian at his next institution in accordance with the terms of the
payment directive portion of this Order. ! SO ORDERED, this 29th day of November, 2022.
ae pe L. RAY UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA
1 The Clerk is DIRECTED to send this Order to plaintiffs account custodian immediately, as this payment directive is nondispositive within the meaning of Fed. R. Civ. P. 72(a), so no Rule 72(b) adoption is required. In the event plaintiff is transferred to another institution, his present custodian shall forward a copy of this Order and all financial information concerning payment of the filing fee and costs in this case to plaintiff's new custodian. The balance due from plaintiff shall be collected by the custodian at his next institution in accordance with the terms of the payment directive portion of this Order.