United States District Court, S.D. Mississippi, Northern Division
CALVIN P. USÉ, SR., # 110652 PLAINTIFF
DR. ROLAND ABANAGAN DEFENDANT
P. JORDAN III UNITED STATES DISTRICT JUDGE.
pro se prisoner case is before the Court on Defendant Dr.
Roland Abanagan's Motion to Dismiss . For the reasons
that follow, the motion is denied without prejudice.
Facts and Procedural
Plaintiff Calvin P. Usé, Sr., an inmate currently
incarcerated at the East Mississippi Correctional Facility
(“EMCF”), brings this § 1983 lawsuit
alleging denial of proper medical care against Dr. Abanagan,
a physician affiliated with EMCF. Usé claims that he
has “been refused” proper care with respect to
“pain in [his] back[, ] left leg[, ] both feet[, ] and
left hip.” Compl.  at 4. The medical records
attached to Usé's Complaint show that he is
frequently dissatisfied with the rate at which EMCF personnel
prescribe and/or dispense pain medication and that he has
made multiple requests to see a pain specialist.
relevant to this case, the December 13, 2015 Administrative
Remedy Program (“ARP”) form Usé submitted
that ultimately led to the filing of this lawsuit complains
that “Dr. Abanagan and/or someone has [discontinued] my
pain medication . . . three to four months before it was
supposed to end.” Id. at 11-12. EMCF's
First Step Response Form notified Usé that he was
“seen and treated by Dr. Abanagan on 12-17-15 and put
on pain medication at that time” and that “[a]ll
orders are being followed as written at this time.”
Id. at 10. Usé responded by alleging that
“Dr. Abanagan will not do anything for me but give
[ibuprofen], naprox[e]n, and tyl[e]nol which do nothing,
[they] do not fix or explain the problem in my lower back[, ]
left hip and leg[, ] and both of my feet.” Id.
at 8. Being unsatisfied with the results of his ARP,
Usé filed this lawsuit on February 29, 2016. He
asserts claims against Dr. Abanagan in his official and
individual capacities and seeks “a preliminary and
permanent injunction ordering Dr. Abanagan to send [him] to a
specialist for his pain problems.” Id. at 5.
Dr. Abanagan waived service of process  and moved to
dismiss . Usé filed a tardy response , and Dr.
Abanagan filed a rebuttal . The Court is now prepared to
Abanagan has moved for dismissal under Rule 12(b)(6) for
failure to state a claim. Under that rule, the “court
accepts ‘all well-pleaded facts as true, viewing them
in the light most favorable to the plaintiff.'”
Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999) (per curiam)). But “the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a motion to dismiss, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted). Finally, because Usé
is proceeding pro se, the Court must “liberally
construe” his complaint and filings. Turner v.
Cain, 647 F. App'x 357, 362 (5th Cir. 2016) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). And in
the event the Court concludes a pro se complaint is due to be
dismissed for failure to state a claim, the Court should
“[g]enerally . . . giv[e] the plaintiff an opportunity
to amend.” Lerma v. Falks, 338 F. App'x
472, 474 (5th Cir. 2009) (quoting Bazrowx v. Scott,
136 F.3d 1053, 1054 (5th Cir. 1998)).
Eighth Amendment to the United States Constitution prohibits
the imposition of “cruel and unusual punishments”
on incarcerated individuals. U.S. Const. amend. VIII.
“In Estelle v. Gamble, the [Supreme] Court
held that prison officials inflict cruel and unusual
punishment if they are deliberately indifferent to an
inmate's serious medical needs.” Victoria W. v.
Larpenter, 369 F.3d 475, 483 (5th Cir. 2004) (citing
Estelle, 429 U.S. 97, 103-04 (1976)).
“Deliberate indifference encompasses only unnecessary
and wanton infliction of pain repugnant to the conscience of
mankind.” Norton v. Dimazana, 122 F.3d 286,
291 (5th Cir. 1997). An inmate who merely
“[d]isagree[s] with medical treatment does not state a
claim for Eighth Amendment indifference to medical
needs.” Id. at 292. Finally, “[a] delay
in medical care violates the Eighth Amendment only if it is
due to deliberate indifference and results in substantial
harm.” Smith v. Millhauser, 444 F. App'x
812, 813 (5th Cir. 2011).
Abanagan urges the Court to dismiss Usé's
complaint because the factual allegations do not state a
facially plausible claim that he “acted with deliberate
indifference to Us[é]'s serious medical
needs.” Def.'s Mem.  at 2. For his part,
Usé contends that he has met his burden at the
pleading stage, noting that Abanagan has ceased his pain
medication “for 3 to 6 months at a time for no
reason” and “refuses to order his pain
medication, ” causing Usé “und[ue] pain in
his back, legs, feet and hands.” Pl.'s Mem.  at
Abanagan makes a strong argument that Usé's
allegations demonstrate nothing more than “a difference
of opinion as to the proper course of treatment” and do
not show deliberate indifference. Trujillo v. Arce,
109 F. App'x 668, 670 (5th Cir. 2004). That said,
Usé does suggest that he was denied pain relief
without reason. While this may be somewhat thin, on a Rule
12(b)(6) motion, the Court would generally be inclined to
grant the pro se plaintiff leave to amend. Lerma,
338 F. App'x at 474. But an amended complaint may be no
better and draw another motion under Rule 12. In an effort to
more efficiently bring this case to a resolution, and because
this presents a close call, the Court will deny Dr.
Abanagan's motion without prejudice. Magistrate Judge
Ball can conduct a Spears hearing and better assess
the viability of Usé's claims. Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985). If Usé
cannot better state his claim, then Dr. Abanagan may again
Court has considered all arguments. Those not specifically
addressed would not have changed the outcome. For the
foregoing reasons, Defendant Dr. Roland Abanagan's ...