Acoff v. Wexford Health Sources Inc ( 2020 )

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION MARCO DANE ACOFF, ) ) Plaintiff, ) ) v. ) Case No. 2:20-cv-00929-RDP-SGC ) WEXFORD HEALTH SOURCES, INC., ) et al., ) ) Defendants. ) MEMORANDUM OPINION On July 28, 2020, the Magistrate Judge entered a Report and Recommendation recommending this action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g). (Doc. 4). Plaintiff has filed objections to the Report and Recommendation and a motion to amend his complaint. (Docs. 5-6). After having reviewed federal court records, the Magistrate Judge found Plaintiff had filed at least three previous cases which were dismissed as meritless, including: Acoff v. Reevees, et al., No. 2:02-cv-02606-IPJ-JEO; Acoff v. Deputy Cole, et al., No. 2:05-cv-00179-RDP-RRA; and Acoff v. Austin, et al., Case No. 2:09-cv-00044-TMH-TFM (M.D. Ala. filed Jan 21, 2009). (Doc. 4 at 2-3). Pursuant to the Prison Litigation Reform Act and Eleventh Circuit case law, the Magistrate Judge noted a prisoner who has had three or more cases dismissed as meritless must pay the full filing fee at the time he initiates a subsequent lawsuit. See 28 U.S.C. § 1915(g); Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). The Magistrate Judge recognized that there is an exception to this rule (where a prisoner is “under imminent danger of serious physical injury”), but found Plaintiff’s allegations did not satisfy that standard. See 28 U.S.C. § 1915(g). Plaintiff’s complaint alleges he was not fully informed of the potential side-effects of Paxil and Risperdal—medications he was prescribed to treat mental health problems. Plaintiff contends the medications caused erectile dysfunction and low sperm count, among other injuries; he asserts his physical injuries are serious and imminent because he “may not be able to have sex again or have kids.” (Doc. 1 at 5, 20-34). In his objections to the Magistrate Judge’s Report, Plaintiff again points to undisclosed side effects from the medications, including prolonged erections, repeated urinary tract infections, and worsening eyesight. (Doc. 5 at 3–4). He complains prison doctors “still refuse to acknowledge that injuries are side-effects due to taking meds” and instead they opine Plaintiff’s symptoms are due to his consumption of coffee and marijuana. (Id. at 3). Plaintiff reiterates that not having his injuries treated properly “may lead to me never being able to have sex or kids.” (Id.). Plaintiff’s objections do not differ from the allegations in his complaint, and he has failed to show he is in “imminent danger of serious physical harm.” 28 U.S.C. § 1915(g).1 This is especially true given Plaintiff’s admission he refused to take the offending medication starting in May 2020 and has since been “taken off both Paxil and Riperdal.” (Doc. 1 at 23). In addition, Plaintiff’s proposed amended complaint contains the same claims and, like his original complaint, fails to show imminent danger of serious physical danger. Accordingly, Plaintiff’s pending motion to amend is DENIED as futile. (Doc. 6). 1 Moreover, Plaintiff complains he has not received lab results from blood tests performed in May 2020. (Doc. 5 at 3). However, he admits doctors ordered lab work in response to his complaints. (Id.). He states he has repeatedly filled out sick calls about his issues and acknowledges he was seen by medical staff as recently as August 3, 2020. (Id.). Plaintiff argues the doctors do not acknowledge his injuries are a side-effect of the medication he was prescribed. (Id.). “However, the difference of opinion between an inmate and a medical doctor, or between two medical doctors, as to treatment and diagnosis of a medical condition is insufficient to state a claim of constitutional proportion.” Myers v. Corizon Medical Services, No. 6:14-CV-1533-VEH-TMP, 2015 WL 5033209, at *3 (N.D. Ala. Aug. 25, 2015). Having carefully reviewed and considered de novo all the materials in the court file, including the objections to the Report and Recommendation, the court ADOPTS the Magistrate Judge’s Report and ACCEPTS the Recommendation. Plaintiff's application to proceed in forma pauperis is DENIED. (Doc. 2). Because Plaintiff failed to pay the filing and administrative fees of $400.00 at the time he filed the complaint, this action is due to be dismissed without prejudice. A separate order will be entered. DONE and ORDERED this December 2, 2020. UNITED STATES DISTRICT JUDGE