UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION
EDWARD EUGENE DAVIS, ) ) Plaintiff, ) ) v. ) CV421-121 ) JOHN T. WELCHER, ) OFFICER JOHNSON, ) CORPORAL BOYLE, and ) SGT. WALKER, ) ) Defendants. )
ORDER AND REPORT AND RECOMMENDATION The Court previously recommended that pro se plaintiff Edward Eugene Davis’ Amended Complaint should be dismissed. See doc. 15. Davis timely objected to that Report and Recommendation. Doc. 17. His objection did not identify any defect in the Court’s analysis, but he has also submitted a proposed Second Amended Complaint that expands upon the allegations previously analyzed. As explained more fully below, the Court construes Davis’ “objection” as a motion to amend his Complaint, which is GRANTED. Since his Second Amended Complaint supersedes his Amended Complaint, the recommendation of dismissal is VACATED. Doc. 15, in part. The Court, therefore, proceeds to screen the Second Amended Complaint. 28 U.S.C. § 1915A.
I. Motion to Amend Davis’ objection to the undersigned’s Report and Recommendation
does not, in fact, object. See doc. 17 at 1. Instead of pointing to a defect in that recommendation, Davis asks that the Court “accept the enclosed Second Amended Complaint as plaintiff’s new action.” Id. The Eleventh
Circuit has instructed that the “[l]iberal construction,” afforded to pro se pleadings, “means that federal courts must sometimes look beyond the labels used in a pro se party’s [pleading] and focus on [its] content and
substance . . . .” Torres v. Miami-Dade Cnty, Fla., 734 F. App’x 688, 691 (11th Cir. 2018). Davis’ request that the Court “accept” his Second Amended Complaint is most plausibly construed as a motion to amend,
pursuant to Federal Rule of Civil Procedure 15. See Fed. R. Civ. P. 15(a)(2). The Federal Rules permit a plaintiff to amend his complaint once
as a matter of course. See Fed. R. Civ. P. 15(a)(1). Davis has previously amended at least once. See doc. 9 (Amended Complaint); see also doc. 13 (Addendum to Amendment). Subsequent amendments require leave of court, but “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Supreme Court has explained that “[i]n the
absence of any apparent or declared reason . . . the leave sought [to amend a complaint] should, as the rules require, be ‘freely given.’” Foman v.
Davis, 371 U.S. 178, 182 (1962). Since this case has not progressed beyond the pre-service screening stage, the Court can discern no reason not to permit Davis to amend his complaint. His request to file his Second
Amended Complaint is, therefore, GRANTED. II. Motion to Appoint Counsel In addition to requesting that the Court accept his amended
pleading, Davis’ objection also states that he “renews his Motion for Appointment of Counsel . . . .” Doc. 17 at 1. The Court previously explained that appointment of counsel in a civil case is discretionary, and
appropriate “ ‘only in exceptional circumstances.’” See doc. 15 at 2-3 (quoting Wright v. Langford, 562 F. App’x 769, 777 (11th Cir. 2014)). As the Court noted there, Davis’ pleadings show that he is capable of
presenting his position. See id. at 4. That conclusion is bolstered by his ability to respond to the defects the Report and Recommendation identified in his prior pleading, as discussed more fully below. Accordingly, the Court finds that there are no “exceptional circumstances” warranting appointment of counsel in this case. Davis’
renewed motion is, therefore DENIED. III. Report and Recommendation
The analysis in the prior Report and Recommendation was based on the allegations of the Amended Complaint, as supplemented. See doc. 15 at 1-2, 11-13. “Generally speaking, an amended pleading supersedes
the original pleading; and the original pleading is considered abandoned.” Nassar v. Nassar, 853 F. App’x 620, 621 (11th Cir. 2021) (citing Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th
Cir. 2007)). Since the previous versions of plaintiff’s pleadings are superseded, the Court’s analysis, and dismissal recommendation, are moot. Accordingly, to the extent that the Report and Recommendation
recommended that Davis’ case be dismissed, it is VACATED as moot. Doc. 15, in part. As the Court previously summarized, see doc. 15 at 4-7, Davis’
allegations begin with a fall down the stairs. See doc. 16 at 5. He alleges that one of the defendants, Officer T. Johnson, directed him to move from one cell to another. Id. The second cell “was on the upper tier of the cellblock.” Id. He informed Officer Johnson that he had “medical issues” that “made traversing stairs quite difficult . . . at times.” Id. He also
asserted that his “medical issues” warranted a “lower level bottom bunk” assignment. Id. He expressly alleges, however, that he “was waiting to
see a doctor about receiving a lower level bottom bunk profile,” necessarily implying that he did not have such a profile at the time. Id. Johnson then “explained . . . that if [he] didn’t already have a medical
profile,” he would be required to relocate. Id. “[O]n [his] second trip . . . upstairs,” Davis fell from near the top of the stairs to the bottom. Id. After his fall, Davis alleges that two other defendants, Corporal
Boyle and Sergeant Walker, arrived. Doc. 16 at 6. He alleges that they were “demeaning,” and accused him of faking the fall. Id. When he informed them that he was hurt and unable to get up, they “roughly” and
“awkwardly” put him in a wheelchair. Id. He was then taken to the infirmary. Id. When he arrived in the infirmary, he was seen by “senior nurse
Deborah Sylvester.” Doc. 16 at 6. Sylvester allegedly stated that “she thought the issue [of Davis’ request for a bottom-bunk assignment] was previously addressed as she had seen [his] message on the jail kiosk.” Id. Unidentified “staff nurses along with Corporal Boyle and Sgt. Walker attempted to move [him] from the wheelchair . . . .” Id. In response to
Davis’ requests to lay flat, he was “placed on a flat board.” Id. He was then “admitted into the infirmary” to wait to be seen by Dr. A. Vlasenko.
Id. He also alleges that he was “wheeled to an infirmary room” and “placed into a plastic bed . . . .” Id. It is not entirely clear how that movement was related to his placement on the “board.”
While he was in the infirmary, Davis alleges that he was not provided with any pain medication. Doc. 16 at 7. He alleges that he found it difficult to move for several hours. Id. He was, however, able to
gain some remission from his pain by “invok[ing] the power of [his] spiritual and meditative prayer practices.” Id. After he was examined by the doctor the following morning, he was provided with “plain aspirin”
later that afternoon. Id. He remained in the infirmary for several days, where he had “bloodwork” and x-rays. Id. He objects that “Dr. A. Vlasenko refused to order an MRI,” despite his requests. Id.
Although the chronology is ambiguous, Davis alleges that, at some point, a nurse responded to his requests for a bottom-bunk profile. Doc. 16 at 8.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION
EDWARD EUGENE DAVIS, ) ) Plaintiff, ) ) v. ) CV421-121 ) JOHN T. WELCHER, ) OFFICER JOHNSON, ) CORPORAL BOYLE, and ) SGT. WALKER, ) ) Defendants. )
ORDER AND REPORT AND RECOMMENDATION The Court previously recommended that pro se plaintiff Edward Eugene Davis’ Amended Complaint should be dismissed. See doc. 15. Davis timely objected to that Report and Recommendation. Doc. 17. His objection did not identify any defect in the Court’s analysis, but he has also submitted a proposed Second Amended Complaint that expands upon the allegations previously analyzed. As explained more fully below, the Court construes Davis’ “objection” as a motion to amend his Complaint, which is GRANTED. Since his Second Amended Complaint supersedes his Amended Complaint, the recommendation of dismissal is VACATED. Doc. 15, in part. The Court, therefore, proceeds to screen the Second Amended Complaint. 28 U.S.C. § 1915A.
I. Motion to Amend Davis’ objection to the undersigned’s Report and Recommendation
does not, in fact, object. See doc. 17 at 1. Instead of pointing to a defect in that recommendation, Davis asks that the Court “accept the enclosed Second Amended Complaint as plaintiff’s new action.” Id. The Eleventh
Circuit has instructed that the “[l]iberal construction,” afforded to pro se pleadings, “means that federal courts must sometimes look beyond the labels used in a pro se party’s [pleading] and focus on [its] content and
substance . . . .” Torres v. Miami-Dade Cnty, Fla., 734 F. App’x 688, 691 (11th Cir. 2018). Davis’ request that the Court “accept” his Second Amended Complaint is most plausibly construed as a motion to amend,
pursuant to Federal Rule of Civil Procedure 15. See Fed. R. Civ. P. 15(a)(2). The Federal Rules permit a plaintiff to amend his complaint once
as a matter of course. See Fed. R. Civ. P. 15(a)(1). Davis has previously amended at least once. See doc. 9 (Amended Complaint); see also doc. 13 (Addendum to Amendment). Subsequent amendments require leave of court, but “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Supreme Court has explained that “[i]n the
absence of any apparent or declared reason . . . the leave sought [to amend a complaint] should, as the rules require, be ‘freely given.’” Foman v.
Davis, 371 U.S. 178, 182 (1962). Since this case has not progressed beyond the pre-service screening stage, the Court can discern no reason not to permit Davis to amend his complaint. His request to file his Second
Amended Complaint is, therefore, GRANTED. II. Motion to Appoint Counsel In addition to requesting that the Court accept his amended
pleading, Davis’ objection also states that he “renews his Motion for Appointment of Counsel . . . .” Doc. 17 at 1. The Court previously explained that appointment of counsel in a civil case is discretionary, and
appropriate “ ‘only in exceptional circumstances.’” See doc. 15 at 2-3 (quoting Wright v. Langford, 562 F. App’x 769, 777 (11th Cir. 2014)). As the Court noted there, Davis’ pleadings show that he is capable of
presenting his position. See id. at 4. That conclusion is bolstered by his ability to respond to the defects the Report and Recommendation identified in his prior pleading, as discussed more fully below. Accordingly, the Court finds that there are no “exceptional circumstances” warranting appointment of counsel in this case. Davis’
renewed motion is, therefore DENIED. III. Report and Recommendation
The analysis in the prior Report and Recommendation was based on the allegations of the Amended Complaint, as supplemented. See doc. 15 at 1-2, 11-13. “Generally speaking, an amended pleading supersedes
the original pleading; and the original pleading is considered abandoned.” Nassar v. Nassar, 853 F. App’x 620, 621 (11th Cir. 2021) (citing Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th
Cir. 2007)). Since the previous versions of plaintiff’s pleadings are superseded, the Court’s analysis, and dismissal recommendation, are moot. Accordingly, to the extent that the Report and Recommendation
recommended that Davis’ case be dismissed, it is VACATED as moot. Doc. 15, in part. As the Court previously summarized, see doc. 15 at 4-7, Davis’
allegations begin with a fall down the stairs. See doc. 16 at 5. He alleges that one of the defendants, Officer T. Johnson, directed him to move from one cell to another. Id. The second cell “was on the upper tier of the cellblock.” Id. He informed Officer Johnson that he had “medical issues” that “made traversing stairs quite difficult . . . at times.” Id. He also
asserted that his “medical issues” warranted a “lower level bottom bunk” assignment. Id. He expressly alleges, however, that he “was waiting to
see a doctor about receiving a lower level bottom bunk profile,” necessarily implying that he did not have such a profile at the time. Id. Johnson then “explained . . . that if [he] didn’t already have a medical
profile,” he would be required to relocate. Id. “[O]n [his] second trip . . . upstairs,” Davis fell from near the top of the stairs to the bottom. Id. After his fall, Davis alleges that two other defendants, Corporal
Boyle and Sergeant Walker, arrived. Doc. 16 at 6. He alleges that they were “demeaning,” and accused him of faking the fall. Id. When he informed them that he was hurt and unable to get up, they “roughly” and
“awkwardly” put him in a wheelchair. Id. He was then taken to the infirmary. Id. When he arrived in the infirmary, he was seen by “senior nurse
Deborah Sylvester.” Doc. 16 at 6. Sylvester allegedly stated that “she thought the issue [of Davis’ request for a bottom-bunk assignment] was previously addressed as she had seen [his] message on the jail kiosk.” Id. Unidentified “staff nurses along with Corporal Boyle and Sgt. Walker attempted to move [him] from the wheelchair . . . .” Id. In response to
Davis’ requests to lay flat, he was “placed on a flat board.” Id. He was then “admitted into the infirmary” to wait to be seen by Dr. A. Vlasenko.
Id. He also alleges that he was “wheeled to an infirmary room” and “placed into a plastic bed . . . .” Id. It is not entirely clear how that movement was related to his placement on the “board.”
While he was in the infirmary, Davis alleges that he was not provided with any pain medication. Doc. 16 at 7. He alleges that he found it difficult to move for several hours. Id. He was, however, able to
gain some remission from his pain by “invok[ing] the power of [his] spiritual and meditative prayer practices.” Id. After he was examined by the doctor the following morning, he was provided with “plain aspirin”
later that afternoon. Id. He remained in the infirmary for several days, where he had “bloodwork” and x-rays. Id. He objects that “Dr. A. Vlasenko refused to order an MRI,” despite his requests. Id.
Although the chronology is ambiguous, Davis alleges that, at some point, a nurse responded to his requests for a bottom-bunk profile. Doc. 16 at 8. He explains that “kiosk medical files” reflect that he informed “medical” that his psychiatric medications caused side effects, including vertigo and sleep disturbances, that made him “nervous” about climbing
stairs and sleeping in an upper bunk. Id. He alleges that he now has “a permanent bottom bunk, lower level profile which is further proof that
the special need existed.” Id. at 9. Finally, Davis alleges that his treatment by jail staff has resulted in additional health problems. Specifically, he alleges that “humiliat[ion]
by jail staff and . . . substandard medical treatment” have cause “mental anguish as well as emotional distress,” which, in turn, have resulted in weight gain, high blood pressure, and, perhaps, other general
cardiovascular symptoms. See doc. 16 at 9. He also alleges that “[t]he added stress that [he has] been forced to function under since [his] fall has caused [his] depression and anxiety to increase greatly . . . .” Id. at
10. A. Sheriff Wilcher and Chatham County The previous Report and Recommendation pointed out the “well-
settled” principle that “[s]ection 1983 claims may not be brought against supervisory officials solely on the basis of vicarious liability or respondeat superior.” Averhart v. Warden, 590 F. App’x 873, 874 (11th Cir. 2014) (citation omitted); see doc. 15 at 6. Davis’ Second Amended Complaint is explicit in asserting Sheriff Wilcher’s liability based solely on his
supervisory role at the jail. Doc. 16 at 10. The Second Amended Complaint, therefore, fails to state a claim upon which relief can be
granted against Sheriff Wilcher. Davis’ claim against Sheriff Wilcher should be DISMISSED. Davis also names Chatham County as a party defendant. See doc.
16 at 10. Like has claim against Sheriff Wilcher, he expressly alleges that the County is liable as “the municipality employing,” the other defendants. Id. While a county may be sued under § 1983, such a suit
requires a showing that a custom, pattern, or practice of the county resulted in the deprivation of plaintiff’s constitutional rights. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). A county cannot,
however, be held vicariously liable for the actions of its officers or employees. Id. at 691. Davis alleges no custom, pattern, or practice of Chatham County in his Second Amended Complaint. Other than the
express assertion of its vicarious liability, he does not mention it at all. See generally doc. 16. His claim against the County, therefore, should be DISMISSED.
B. Deliberate Indifference to Serious Medical Needs Liberally construing Davis Second Amended Complaint, the
majority of his allegations assert that various defendants were deliberately indifferent to his medical needs. To offend the Eighth Amendment,1 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, 510 F.3d at 1326. 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
1 Davis now alleges that he is a pretrial detainee. See doc. 16 at 11. Claims by pretrial detainees are technically governed by the Fourteenth Amendment, not the Eighth. See Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007). “However, the standards under the Fourteenth Amendment are identical to those under the Eighth.” Id. (citation omitted); see also Thomas v. Bradshaw, 2022 WL 333244, at *4 (11th Cir. Feb. 4, 2022) (same). 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 Cty., 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 (“the
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.”). 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.”).
Davis alleges, at most, negligence or disagreement with the type of treatment he received.2 He expressly alleges that, although they were
“demeaning,” Corporal Boyle and Sgt. Walker took him directly to the infirmary after his fall. Doc. 16 at 6. Once he got to the infirmary, he expressly alleges that he received “treatment,” albeit “callous.” Id. When
he asked to be allowed to lay flat, staff placed him on a “flat board.” Id. Although he was uncomfortable during the night, he was able to relieve his pain through “the power of [his] spiritual and meditative prayer
practices.” Id. at 7. Despite his allegation that he did not receive “any real treatment,” he alleges that he was given aspirin, had blood tests, and had x-rays taken. Id. Finally, although he alleges ongoing health issues,
which he contends are related to the injuries he suffered, he expressly alleges that he is receiving treatment for those issues. See id. at 9. At
2 As the Court previously noted, “the general pain suffered after a minor fall is not a ‘serious medical need’ sufficient to support a § 1983 deliberate indifference claim.” Doc. 15 at 10 n. 3 (citations omitted). Davis’ amended allegations remain ambiguous as to whether the injury he suffered from the fall could constitute a “serious medical need.” most, those allegations implicate negligence or medical malpractice, they do not allege that any defendant was deliberately indifferent.
Davis Second Amended Complaint can also be charitably construed to allege that the failure to more promptly assign him a lower bunk
constituted deliberate indifference to his serious medical needs. See, e.g., doc. 16 at 8. The Eleventh Circuit has recently affirmed that failure to accommodate a “bottom bunk” profile does not violate the Eighth
Amendment, even when that “profile” has been prescribed by medical staff at a previous facility. See Smith v. Wood, 2021 WL 4452526, at *4 (11th Cir. Sept. 29, 2021). It has also expressly held that “failure to order
a bottom-bunk pass . . . [does] not rise above the level of mere negligence . . . .” Faulkner v. Monroe Cnty. Sheriff’s Dep’t, 523 F. App’x 696, 700 (11th Cir. 2013). As this Court has recently explained, “case law
indicates that a failure to honor a bunk profile does not amount to deliberate indifference.” Timmons v. Martin, 2021 WL 1603614, at *6 (S.D. Ga. Mar. 5, 2021) (collecting cases). Davis’ allegations concerning
defendants’ failure to either assign him a bottom-bunk profile promptly, or honor such a profile before it was actually assigned, fail to state a claim.
Accordingly, Davis’ claims that any defendant was deliberately indifferent to his serious medical needs should be DISMISSED. C. Verbal Abuse
Davis also strenuously objects to the demeanor of various defendants throughout his experience. He notes that they were
“demeaning,” “sarcastic,” “disrespectful,” “abusive,” that he was “humiliated” and “ridiculed,” by jail staff. See doc. 16 at 5-11. However, verbal taunting, even if it is egregious, does not violate the Constitution.
As the Eleventh Circuit has recognized “ ‘verbal taunts . . .however distressing’ do not violate a prisoner’s constitutional rights under the Eighth Amendment.” In re Eric Watkins Litig., 829 F. App’x 428, 431
(11th Cir. 2020) (quoting Edwards v. Gilbert, 867 F.2d 1271, 1274 n. 1 (11th Cir. 1989)). To the extent that Davis asserts a claim based on any defendant’s disrespectful language, his claim should be DISMISSED.
IV. Conclusion In summary, the Court GRANTS Davis’ Motion to Amend, and DENIES his Motion to Appoint Counsel. Doc. 17. To the extent that the Court’s prior Report and Recommendation recommended dismissal of Davis’ Amended Complaint, it is VACATED as moot. Doc. 15, in part.
The Court RECOMMENDS that his Second Amended Complaint be DISMISSED for failure to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915A(b). This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B)
and this Court’s Local Rule 72.3. Within 14 days of service, any party may file written objections to the R&R with the Court and serve a copy on all parties. The document should be captioned “Objections to
Magistrate Judge’s Report and Recommendations.” Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp., 648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F. App’x 542, 545 (11th Cir. 2015). SO ORDERED AND REPORTED AND RECOMMENDED, this 17th day of May, 2022.
Lan~G. CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA