Lowrey v. Walton County Sheriff's Department et al

Filing 9

ORDER AND RECOMMENDATION re 1 Complaint filed by Anthony Blake Lowrey Objections to R&R due by 3/3/2008. Ordered by U.S. Mag. Judge Claude W. Hicks, Jr. on 2/8/08. (CWH)

Lowrey v. Chapman, et al

Doc. 9

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION ANTHONY BLAKE LOWREY, Plaintiff VS. WALTON COUNTY SHERIFF'S DEPARTMENT, Sheriff JOE CHAPMAN, Captain ETCHINSON, Lt. ATKINSON, Sgt. STUDDARD, Officer THOMPSON 4685, Defendants PROCEEDINGS UNDER 42 U.S.C. §1983 BEFORE THE U. S. MAGISTRATE JUDGE

NO. 3:07-CV-121(CDL)

ORDER AND RECOMMENDATION
Plaintiff ANTHONY BLAKE LOWERY, formerly a pretrial detainee at the Walton County Jail in Monroe, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He also seeks leave to proceed without prepayment of the filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). By separate Order entered simultaneously, plaintiff's motion to proceed in forma pauperis has been GRANTED. I. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 1915A, a federal court is required to dismiss a prisoner's complaint against a governmental entity or officer or employee of a governmental entity at any time if the court determines that the action "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." A claim is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint may be dismissed for failure to state a claim on which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Scheuer v. Rhodes, 416 U.S. 232 (1974).

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In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege two elements. First, the plaintiff must allege that an act or omission deprived him of a right, privilege or immunity secured by the Constitution of the United States. See Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987). Second, the plaintiff must allege that the act or omission was committed by a person acting under color of state law. Id.

II. STATEMENT AND ANALYSIS OF PLAINTIFF'S CLAIMS Plaintiff Lowrey sets forth various allegations about the conditions of confinement at the Walton County Jail. He complains that he is not able to take GED courses or any other classes to "better himself." He fears he is not receiving at least 2,000 calories per day and complains of a lack of fruit and a lack of fruit juices and flavored drinks at the jail. Plaintiff also explains that he has to eat his meals in his cell and that he does not have an adequate table. He alleges that the laundry services are inadequate; that he is not given enough bath soap, toothpaste, and deodorant; and that he must spend most of his days in his cell without being allowed to watch television or being given any "day room" time. Plaintiff states that he has been locked in his cell during the time that a waterproofing company worked on the showers, and he had to smell the chemicals with which they were working. Finally, he complains that he is able to use the phone on a very limited basis only. The Court notes that plaintiff was a pretrial detainee at the Walton County Jail when he filed this action. The Eleventh Circuit Court of Appeals has held that "in regard to providing pretrial detainees with such basic necessities as food, living space, and medical care the minimum standard allowed by the due process clause is the same as that allowed by the [E]ighth [A]mendment for convicted persons." Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir.1985). Under the Eighth Amendment (and the due process clause), prison officials have a duty to provide humane conditions of confinement and a duty to ensure that prisoners receive adequate food, clothing, shelter, and medical care. See Hudson v. McMillian, 503 U.S. 1 (1992); Hudson v. Palmer, 468 U.S. 517 (1984). -2-

However, the Supreme Court has made it clear that the Constitution requires neither than prisons be comfortable nor that they provide every amenity that one might find desirable. Rhodes v. Chapman, 452 U.S. 337, 349 (1981). To prevail on an Eighth Amendment claim (and a due process claim) plaintiff must demonstrate that (1) the deprivation alleged is, from an objective standpoint, "sufficiently serious"; and (2) that prison officials acted with "deliberate indifference," that is, the officials knew of and disregarded an excessive risk to inmate health and safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). None of plaintiff's allegations, alone or in the aggregate, are sufficiently serious enough to implicate the Constitution. Moreover, the Court notes that plaintiff has not suffered any type of physical injuries from most of the deprivations he alleges. 42 U.S.C. § 1997e(e) provides as follows: "No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury." See also Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). As plaintiff sustained no physical injuries as a result of these various actions or inactions, these claims are not actionable under 42 U.S.C. § 1983. For these reasons, the undersigned RECOMMENDS that plaintiff's claims regarding his conditions of confinement be dismissed. Under 28 U.S.C. § 636(b)(1), plaintiff may serve and file written objections to this recommendation with the district judge to whom this case is assigned, WITHIN TEN (10) DAYS after being served a copy of this Order. Plaintiff also complains that he only receives three free stamped envelopes every two weeks. The Supreme Court held in Bounds v. Smith, 430 U.S. 817, 824-25 (1977), that it "is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them." The Eleventh Circuit has interpreted Bounds as "entitl[ing] indigent prisoners to some free stamps . . . not unlimited free postage[.]'" Hoppins v. Wallace, 751 F.2d 1161, 1162 (11th Cir. 1985). In Van Poyck v. Singletary, 106 F.3d 1558 (11th Cir. 1997), the Eleventh Circuit upheld a prison regulation affecting only routine mail but not legal mail, finding that the policy of preventing inmates from possessing loose postage stamps is directly related to the legitimate security interest of eliminating "the exchange of contraband among inmates." Id. at 1559. -3-

Limiting indigent prisoners to three stamps every two weeks, particularly when taking into consideration valid penalogical goals such as security, does not violate the First Amendment. The regulation rationing stamps, while in plaintiff's view unfair, raises no constitutional claim. It is not the function of this Court to review regulations established by prison authorities unless a constitutional violation is presented. Moreover, plaintiff has not claimed that the defendant's policy has in any way affected his First Amendment right of access to the courts: Plaintiff has not alleged an actual denial of postage for his outgoing legal mail. In light of the fact that plaintiff filed three lawsuits in this Court during the months of October and November 2007, while he was incarcerated at the Walton County Jail, it is difficult to see how his right of access to court has been infringed. Accordingly, the undersigned RECOMMENDS that plaintiff's claims regarding indigent postage be dismissed. Under 28 U.S.C. § 636(b)(1), plaintiff may serve and file written objections to this recommendation with the district judge to whom this case is assigned, WITHIN TEN (10) DAYS after being served a copy of this Order. Plaintiff has named the Walton County Sheriff's Department in the heading of his complaint. This is not a legal entity subject to suit. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). Therefore, the undersigned RECOMMENDS that the Walton County Sheriff's Department be dismissed. Under 28 U.S.C. § 636(b)(1), plaintiff may serve and file written objections to this recommendation with the district judge to whom this case is assigned, WITHIN TEN (10) DAYS after being served a copy of this Order. Plaintiff Lowrey further complains that he is not allowed to seal his out-going mail and that it is the policy of Walton County Jail to censor all of the outgoing and incoming mail. Plaintiff alleges that several of his out-going letters and one incoming letter were confiscated. Plaintiff also alleges that Officer Thompson and Sgt. Studdard violated his rights to be free from punishment without due process of law by placing him in lockdown without a hearing. These allegations should go forward against Sheriff JOE CHAPMAN, Officer THOMPSON, and Sgt. STUDDARD.

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Accordingly, IT IS ORDERED AND DIRECTED that service be made as provided by law upon defendants Sheriff JOE CHAPMAN, Officer THOMPSON, and Sgt. STUDDARD only; that a WAIVER OF REPLY, an ANSWER or such other response as may be appropriate under Rule 12 of the FEDERAL RULES OF CIVIL PROCEDURE, 28 U.S.C. §1915, and the Prison Litigation Reform Act be filed herein by said defendants as required and permitted by law. It is further ORDERED AND DIRECTED that a copy of this order be served upon plaintiff's custodian, if any.

DUTY TO ADVISE OF ADDRESS CHANGE During the pendency of this action, each party shall at all times keep the Clerk of this court and all opposing attorneys and/or parties advised of his current address. FAILURE TO

PROMPTLY ADVISE THE CLERK OF ANY CHANGE OF ADDRESS MAY RESULT IN THE DISMISSAL OF A PARTY'S PLEADINGS FILED HEREIN!

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DUTY TO PROSECUTE ACTION Plaintiff is advised that he must diligently prosecute his complaint or face the possibility that

it will be dismissed under Rule 41(b) of the FEDERAL RULES OF CIVIL PROCEDURE for failure to prosecute. Defendants are advised that they are expected to diligently defend all allegations made against them and to file timely dispositive motions as hereinafter directed. This matter will be set down for trial when the court determine that discovery has been completed and all motions have been disposed of or the time for filing dispositive motions has passed.

FILING AND SERVICE OF MOTIONS, PLEADINGS, DISCOVERY AND CORRESPONDENCE It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of court; to serve copies of all motions, pleadings, discovery, and correspondence (including letters to the Clerk or to a judge) upon opposing parties or counsel for opposing parties if they are represented; and to attach to said original motions and pleadings filed with the Clerk a
CERTIFICATE OF SERVICE indicating who has been served and where (i.e., at what address), when

service was made, and how service was accomplished (i.e., by U. S. Mail, by personal service, etc.). THE CLERK OF COURT WILL NOT SERVE OR FORWARD COPIES OF SUCH MOTIONS, PLEADINGS, AND CORRESPONDENCE ON BEHALF OF THE PARTIES! -5-

DISCOVERY PLAINTIFF(S) SHALL NOT COMMENCE DISCOVERY UNTIL AN ANSWER OR DISPOSITIVE MOTION HAS BEEN FILED ON BEHALF OF THE DEFENDANT(S) FROM WHOM DISCOVERY IS SOUGHT BY THE PLAINTIFF(S). THE DEFENDANT(S) SHALL NOT COMMENCE DISCOVERY UNTIL SUCH TIME AS AN ANSWER OR DISPOSITIVE MOTION HAS BEEN FILED. Once an answer or dispositive motion has been filed, the parties are authorized to seek discovery from one another as provided in the FEDERAL RULES
OF

CIVIL PROCEDURE. The

deposition of the plaintiff, a state/county prisoner, may be taken at any time during the time period hereinafter set out provided prior arrangements are made with his/her custodian. IT IS HEREBY ORDERED that discovery (including depositions and interrogatories) shall be completed WITHIN 90 DAYS from the date of filing of an ANSWER or DISPOSITIVE MOTION by the defendant(s), unless an extension is otherwise granted by the court upon a showing of good cause therefor or a protective order is sought by the defendants and granted by the court. This 90 DAY period shall run separately as to each plaintiff and each defendant beginning on the date of filing of each defendant's answer/dispositive motion. The scheduling of a trial herein may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline. DISCOVERY MATERIALS SHALL NOT BE FILED WITH THE CLERK OF COURT. NO
PARTY SHALL BE REQUIRED TO RESPOND TO ANY DISCOVERY NOT DIRECTED TO HIM OR SERVED UPON HIM BY THE OPPOSING COUNSEL/PARTY!

The undersigned incorporates herein those parts of the Local
REQUESTS FOR

Rules imposing the following limitations on discovery: except with written permission of the court first obtained,
INTERROGATORIES

may not exceed TWENTY-FIVE (25) to each party,

PRODUCTION OF DOCUMENTS AND THINGS under Rule 34 of the FEDERAL RULES OF CIVIL PROCEDURE

may not exceed TEN (10) requests to each party, and REQUESTS FOR ADMISSIONS under Rule 36 of the FEDERAL RULES OF CIVIL PROCEDURE may not exceed TEN (10) requests to each party. No party shall be required to respond to any such requests which exceed these limitations.

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REQUESTS FOR DISMISSAL AND/OR JUDGMENT Dismissal of this action or requests for judgment will not be considered by the court absent the

filing of a SEPARATE MOTION therefor accompanied by a brief/memorandum of law citing supporting authorities. DISPOSITIVE MOTIONS should be filed at the earliest time possible, but in any event no later than THIRTY (30) DAYS after the close of discovery unless otherwise directed by the court. -6-

DIRECTIONS TO CUSTODIAN OF PLAINTIFF Following the payment of the required initial partial filing fee or the waiving of the payment of same, the WARDEN of the institution wherein plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor custodians, shall each month cause to be remitted to the Clerk of this court TWENTY PERCENT (20%) of the preceding month's income credited to plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act, plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. IT IS FURTHER ORDERED AND DIRECTED that collection of monthly payments from plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee. PLAINTIFF'S OBLIGATION TO PAY FILING FEE Pursuant to provisions of the Prison Litigation Reform Act, in the event plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; plaintiff shall continue to remit monthly payments as required by the Prison Litigation Reform Act. Collection from the plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event plaintiff is released from custody and fails to remit payments. In addition, plaintiff's complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so. ELECTION TO PROCEED BEFORE THE UNITED STATES MAGISTRATE JUDGE Under Local Rule 72, all prisoner complaints filed under provisions of 42 U.S.C. §1983 are referred to a full-time United States Magistrate Judge for this district for consideration of all pretrial matters. In addition, 28 U.S.C. §636(c)(1) authorizes and empowers full-time magistrate judges to conduct any and all proceedings in a jury or nonjury civil matter and to order the entry of judgment in a case upon the written consent of all of the parties. Whether the parties elect to proceed before a magistrate judge or retain their right to proceed before a U. S. district judge is strictly up to the parties themselves. -7-

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After the filing of responsive pleadings by the defendants, the Clerk of court is directed to

provide ELECTION FORMS to the parties and/or to their legal counsel, if represented. Upon receipt of the ELECTION FORMS, each party shall cause the same to be executed and returned to the Clerk's Office WITHIN FIFTEEN (15) DAYS. Counsel may execute ELECTION FORMS on behalf of their clients provided they have such permission from their clients. However, counsel must specify on the
ELECTION FORMS

on whose behalf the form is executed.

SO ORDERED AND RECOMMENDED, this 8th day of February, 2008.

CLAUDE W. HICKS, JR. UNITED STATES MAGISTRATE JUDGE

ADDENDUM TO ORDER

NOTICE TO ALL PARTIES
PURSUANT TO THE COURT'S ORDER REGARDING DISCOVERY SET OUT ABOVE, NO DISCOVERY SHALL BE PERMITTED IN THIS CASE UNTIL AN ANSWER OR DISPOSITIVE MOTION (e.g., MOTION TO DISMISS, MOTION FOR SUMMARY JUDGMENT, MOTION FOR JUDGMENT ON THE PLEADINGS) HAS BEEN FILED BY THE DEFENDANT(S). PURSUANT TO THE FEDERAL RULES OF CIVIL PROCEDURE, DISCOVERY (DEPOSITIONS, INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS, REQUESTS FOR ADMISSIONS, ETC., AND RESPONSES THERETO) SHALL NOT BE FILED WITH THE CLERK OF COURT. NOTE THAT THIS IS A CHANGE IN THE PROCEDURE HERETOFORE FOLLOWED IN THIS DISTRICT. DO NOT FILE ANY DISCOVERY WITH THE COURT UNLESS YOU ARE SPECIFICALLY DIRECTED TO DO SO BY THE COURT OR UNLESS FILING IS NECESSARY TO SUPPORT OR CONTEST A MOTION TO COMPEL DISCOVERY, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION. THE CLERK IS DIRECTED TO RETURN ANY SUBMITTED DISCOVERY TO THE PARTY SUBMITTING IT UNLESS IT IS FILED PURSUANT TO AN ORDER OF THE COURT OR IN SUPPORT OF A MOTION TO COMPEL, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION.