RILEY v. GLOVER

Filing 6

ORDER, ORDER Directing Service, REPORT AND RECOMMENDATION re 1 Complaint filed by DENNIS LEWIS RILEY. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 2-1-18. (bdd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
DENNIS LEWIS RILEY,

:
:
Plaintiff,
:
:
v.
:
:
Corrections Officer
:
JAMES GLOVER,
:
:
Defendant.
:
________________________________ :

No. 4:17-cv-00235-CDL-MSH

ORDER AND RECOMMENDATION
Pro se Plaintiff Dennis Lewis Riley, an inmate at Rutledge State Prison in
Columbus, Georgia, filed the present civil rights complaint under 42 U.S.C. § 1983.
Compl., ECF No. 1. Plaintiff also submitted a motion for leave to proceed in forma
pauperis (“IFP”). Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2. That motion
was granted, and Plaintiff was ordered to pay an initial partial filing fee. Order Granting
Mot. for Leave to Proceed In Forma Pauperis, ECF No. 5. Plaintiff has now paid the initial
partial filing fee and his complaint is ripe for preliminary review as required by the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a).
Upon review of Plaintiff’s Complaint, the undersigned will allow Plaintiff’s claims
for cruel and unusual punishment and for violation of his right to bodily privacy to proceed.
For the reasons explained below, it is recommended that his Eighth Amendment excessive
force claim be dismissed without prejudice.

I. Motion to Proceed In Forma Pauperis
The district courts may authorize the commencement of a civil action without
prepayment of the normally required filing fee if the plaintiff shows that he is indigent and
financially unable to pay the filing fee. See 28 U.S.C. §1915(b). As noted above, Plaintiff’s
motion to proceed in forma pauperis was previously granted, and Plaintiff has paid an
initial partial filing fee.
Although he is proceeding in forma pauperis, Plaintiff is nevertheless obligated to
pay the full $350.00 filing fee, in installments, as provided in 28 U.S.C. § 1915(b)(1) and
explained below. The CLERK shall therefore forward a copy of this ORDER to the
business manager of the facility in which Plaintiff is detained so that withdrawals from his
account may commence as payment towards the filing fee. The district court’s filing fee
is not refundable, regardless of the outcome of the case, and must therefore be paid in full
even if Plaintiff’s complaint (or any part thereof) is dismissed prior to service.
A. Directions to Plaintiff’s Custodian
Because Plaintiff has now been granted leave to proceed IFP, it is hereby
ORDERED that 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, 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 the provisions of the PLRA, 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
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account exceeds $10.00. It is further ORDERED 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 collection of the full filing fee.
B. Plaintiff’s Obligations Upon Release
Pursuant to the provisions of the PLRA, 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 PLRA.
Collection from 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. Plaintiff’s Complaint is subject to dismissal if he has the ability to make
monthly payments and fails to do so.
II. Preliminary Screening
A. Standard of Review
Under the PLRA, the district courts are obligated to conduct a preliminary screening
of every complaint filed by a prisoner who seeks redress from a government entity, official,
or employee. See 28 U.S.C. § 1915A(a). Screening is also required, under 28 U.S.C.
§ 1915(e), when the plaintiff is proceeding IFP. Both statutes apply in this case but the
standard of review is the same. When conducting a preliminary screening, the Court must
accept all factual allegations in the complaint as true. See Boxer X v. Harris, 437 F.3d
1107, 1110 (11th Cir. 2006); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003).
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Pro se pleadings, like the one in this case, are “held to a less stringent standard than
pleadings drafted by attorneys,” and a pro se complaint is thus “liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam). The
district court, however, cannot allow a plaintiff to litigate frivolous, conclusory, or
speculative claims. Thus, as part of the preliminary screening, the court shall dismiss a
complaint, or any part thereof, prior to service if it is apparent that the plaintiff’s claims are
frivolous or if his allegations fail to state a claim upon which relief may be granted – i.e.,
that the plaintiff is not entitled to relief based on the facts alleged. See § 1915A(b);
§ 1915(e).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v.
Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The
Court may dismiss claims that are based on “indisputably meritless legal” theories and
“claims whose factual contentions are clearly baseless.” Id. (internal quotation marks
omitted). A complaint fails to state a claim if it does not include “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The factual allegations in a complaint “must be enough to raise a right to relief above the
speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right
of action.” Twombly, 550 U.S. at 555 (second alteration in original). In other words, the
complaint must allege enough facts “to raise a reasonable expectation that discovery will
reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
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at 678.
To state a claim for relief under §1983, a plaintiff must allege that (1) an act or
omission deprived him of a right, privilege, or immunity secured by the Constitution or a
statute of the United States; and (2) the act or omission was committed by a person acting
under color of state law. Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). If
a litigant cannot satisfy these requirements or fails to provide factual allegations in support
of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340
F.3d 1279, 1282-84 (11th Cir. 2003).
B. Factual Allegations
In his Complaint, Plaintiff alleges that he observed Defendant Officer James Glover
reading another inmate’s legal mail, so Plaintiff confronted Glover about whether Glover
was allowed to read their legal mail. Compl. 5, ECF No. 1. In response, Glover became
angry and told Plaintiff to remove his shorts, which Glover said were contraband. Id. at 7.
Plaintiff removed his shorts, leaving him in his boxer shorts. Id. Thereafter, Glover
ordered Plaintiff to step outside of his cell, where Glover handcuffed Plaintiff. Id.
Glover then began berating Plaintiff and lunged at Plaintiff, as if to grab his throat.
Id. Plaintiff jumped back from Glover, and in doing so, Plaintiff’s genitals came out of his
boxer shorts. Id. Plaintiff asked Glover if Plaintiff could put his penis back into his boxer
shorts, and Glover refused to allow him to do so. Id. Plaintiff was left with his genitals
exposed for approximately two hours. Id. During this time, Glover walked Plaintiff
through the prison to the security building, such that Plaintiff could be seen by anyone
looking out a window. Id. at 8.
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Plaintiff asserts that, before this incident, he was already under the care of mental
health services because he suffers from mental illness. Id. Following this incident, Plaintiff
has had to see his mental health counselor twice a week, has lost over 18 pounds, has
nightmares, and is in fear for his safety. Id. at 10. Moreover, officials are considering
sending Plaintiff to a rape crisis center. Id.
C. Analysis
1. Excessive Force
Plaintiff first asserts that, by pushing Plaintiff’s head with his index finger and by
lunging at Plaintiff, Glover used excessive force. Compl. 8, ECF No. 1. An Eighth
Amendment claim for excessive force involves the “unnecessary and wanton infliction of
pain.” Hudson v. McMillian, 503 U.S. 1, 5 (1992). In reviewing a claim for excessive
force, the question is “whether force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose of causing harm.” Id. at 6
(quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). An excessive force claim will
not lie with regard to a de minimis use of force, as long as that use of force is not “repugnant
to the conscience of mankind.” Id. at 10.
Here, Plaintiff’s only factual allegations in this regard are that Glover pushed
Plaintiff’s head with his index finger and that Glover lunged at Plaintiff. Compl. 7, ECF
No. 1. Plaintiff’s allegations that Glover pushed Plaintiff with a single finger and acted as
though he was going to grab Plaintiff assert, at most, only a de minimis use of force.
Moreover, Plaintiff does not allege that these actions caused Plaintiff any physical pain.
Accordingly, Plaintiff has not stated a claim for use of excessive force. See Hudson, 502
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U.S. at 5-6, 10. It is therefore RECOMMENDED that his excessive force claim be
DISMISSED WITHOUT PREJUDICE. 1
2. Cruel and Unusual Punishment
Plaintiff also alleges that Glover’s actions in leaving Plaintiff with his genitals
exposed in a public area and then publicly walking him through the prison in this condition
constituted cruel and unusual punishment in violation of the Eighth Amendment. Compl.
9, ECF No. 1.
The Eleventh Circuit has held that “severe and repetitive sexual abuse of a prisoner
by a prison official can violate the Eighth Amendment.” Boxer X v. Harris, 437 F.3d 1107,
1111 (11th Cir. 2006). To state such a claim, a prisoner must allege facts satisfying an
objective component, “which requires that the injury be ‘objectively, sufficiently serious,’
and a subjective component, which requires the prison official have a ‘sufficiently culpable
state of mind.’” Id. (quoting Farmer v. Brennan, 51 U.S. 825, 834 (1994)). “[A]n injury
can be ‘objectively, sufficiently serious’ only if there is more than de minimis injury.” Id.
(citing Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir. 2002)).

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In addition to an Eighth Amendment excessive force claim, it appears that Plaintiff may
be attempting to assert state law claims for assault and battery. See Compl. 8, ECF No. 1.
As discussed below, the only federal claims for which Plaintiff should be allowed to
proceed are his cruel and unusual punishment claim and his right to bodily privacy claim.
Although these claims should survive initial screening, it is possible that they may fail if
faced with a motion to dismiss or a motion for summary judgment. In the event that the
federal claims over which this Court has original jurisdiction are dismissed, the Court
would likely decline to exercise supplemental jurisdiction over Plaintiff’s state law claims.
See 28 U.S.C. § 1367. Therefore, as federal jurisdiction over Plaintiff’s state law claims
remains an unsettled issue, the Court finds it unnecessary and inappropriate to reach the
merits of Plaintiff’s possible state law claims at this early stage of the case.
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Here, Plaintiff alleged that he was left with his penis exposed for two hours and
walked through the prison in plain view. Construing Plaintiff’s allegations in his favor, the
complaint could be read as alleging that there was no legitimate reason for Glover to refuse
to allow Plaintiff to cover himself, and instead, that Plaintiff was required to walk through
the prison with his genitals exposed in order to humiliate Plaintiff. These allegations are
sufficient to state a claim for sexual abuse to allow this claim to proceed for further factual
development. See King v. McCarty, 781 F.3d 889, 897-98 (7th Cir. 2015) (concluding that
a prisoner stated an Eighth Amendment claim for cruel and unusual punishment by alleging
that he was “degraded and humiliated by being transported in a see-through jumpsuit that
left him exposed in front of other inmates as well as guards of both sexes” for no legitimate
reason).
3. Violation of Privacy
The Eleventh Circuit has also recognized a claim under § 1983 for a violation of a
prisoner’s constitutional right to bodily privacy. See Fortner v. Thomas, 983 F.2d 1024,
1030 (11th Cir. 1993). In particular, the Eleventh Circuit recognized that “most people
have ‘a special sense of privacy in their genitals, and involuntary exposure of them in the
presence of people of the other sex may be especially demeaning and humiliating.’” Id.
(quoting Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981)). In the complaint, Plaintiff
alleges that he was walked through the prison in view of anyone who was looking out a
window, which could have included female guards or other female employees of the prison.
Construing these allegations in the light most favorable to Plaintiff, he has alleged
sufficient facts to state a claim for a violation of his right to bodily privacy. See id. Thus,
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this claim will also be allowed to proceed for further factual development.
III.

Conclusion
Based on the foregoing, Plaintiff will be allowed to proceed against Defendant

Glover on his cruel and unusual punishment claim, as well as his claim for violation of his
right to bodily privacy.

However, it is RECOMMENDED that Plaintiff’s Eighth

Amendment excessive force claim be DISMISSED WITHOUT PREJUDICE.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to any recommendation with the United States District Judge to whom this case is assigned
WITHIN FOURTEEN (14) DAYS after being served with a copy of this Order and
Recommendation. The parties may seek an extension of time in which to file written
objections, provided a request for an extension is filed prior to the deadline for filing written
objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the
right to challenge on appeal the district judge’s order based on factual and legal conclusions
to which no objection was timely made. See 11th Cir. R. 3-1.
ORDER FOR SERVICE
Having found that Plaintiff has made colorable constitutional violation claims
against Defendants, it is accordingly ORDERED that service be made on Defendant
JAMES GLOVER, and that he file an Answer, or such other response as may be
appropriate under Rule 12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act.
Defendant is reminded of the duty to avoid unnecessary service expenses and of the
possible imposition of expenses for failure to waive service pursuant to Rule 4(d).
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DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall keep the Clerk of this Court and
all opposing attorneys and/or parties advised of their current address. Failure to promptly
advise the Clerk of a change of address may result in the dismissal of a party’s pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff is also 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. Defendant is similarly advised that he is expected to
diligently defend all allegations made against him and to file timely dispositive motions as
hereinafter directed. This matter will be set down for trial when the Court determines that
discovery has been completed and that all motions have been disposed of or the time for
filing dispositive motions has passed.
FILING AND SERVICE OF MOTIONS,
PLEADINGS, AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and
correspondence with the Clerk of Court. A party need not serve the opposing party by mail
if the opposing party is represented by counsel. In such cases, any motions, pleadings, or
correspondence shall be served electronically at the time of filing with the Court. If any
party is not represented by counsel, however, it is the responsibility of each opposing party
to serve copies of all motions, pleadings, and correspondence upon the unrepresented party
and to attach to said original motions, pleadings, and correspondence filed with the Clerk
of Court a certificate of service indicating who has been served and where (i.e., at what
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address), when service was made, and how service was accomplished.
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has
been filed on behalf of the Defendant from whom discovery is sought by the Plaintiff. The
Defendant 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 custodian. Plaintiff is hereby advised that failure to submit to a deposition may result
in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil Procedure.
IT IS HEREBY ORDERED that discovery (including depositions and the service
of written discovery requests) shall be completed within 90 days of the date of filing of an
answer or dispositive motion by the Defendant (whichever comes first) unless an extension
is otherwise granted by the court upon a showing of good cause therefor or a protective
order is sought by the defendant and granted by the court. This 90-day period shall run
separately as to Plaintiff and Defendant beginning on the date of filing of Defendant’s
answer or dispositive motion (whichever comes first). The scheduling of a trial 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/her or served upon him/her by the
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opposing counsel/party. The undersigned incorporates herein those parts of the Local
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,
requests for 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
FIFTEEN (15) requests to each party. No party shall be required to respond to any such
requests which exceed these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
The Court shall not consider requests for dismissal of or judgment in this action,
absent the filing of a 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 one hundred twenty (120) days from when the discovery
period begins unless otherwise directed by the Court.
SO ORDERED and RECOMMENDED this 1st day of February, 2018.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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