Martin v. McDaniel et al.

Filing 16

ORDER granting 12 MOTION to Amend/Correct 1 Complaint; REPORT AND RECOMMENDATION re 11 Amended Complaint - It is RECOMMENDED that Plaintiff's claims against WARDEN TOOLE and the GEORGIA DEPARTMENT OF CORRECTIONS be DISMISSED. Ordered by US Mag Judge Stephen Hyles on 9/19/11. (AGH) Modified on 9/19/2011 (ans).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMES M. MARTIN,
Plaintiff,
v.
Lieutenant JOHNNY McDANIEL,
Defendant.
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CASE NO. 5:11-CV-192-MTT-MSH
42 U.S.C. § 1983

ORDER GRANTING MOTION TO AMEND
AND REPORT AND RECOMMENDATION
Plaintiff James Martin has filed two documents with the Court. The first, filed on
July 10, 2011, is titled “Plaintiff Request Leave of Court to Supplement Complaint, Rule
15(c)2” (ECF No. 11) and was docketed as an Amended Complaint. The second filing,
dated August 2, 2011, is titled “Plaintiff Request to Proceed After Supplement Motion
Presented to Court for an Answer: Lieutenant Johnny McDaniel’s Negligence Violated
Plaintiff’s Eight Amendment United States Constitution” (ECF No. 12), and was
docketed as a motion to amend Plaintiff’s Complaint. Through these two documents, it
appears that Plaintiff is attempting to amend his Complaint to:
1.

Change his Federal Torts Claims Act claims to claims pursuant to 42
U.S.C. § 1983, and have those section 1983 claims relate back to the
original Complaint filing date (ECF No. 11 at 1);

2.

Reassert his claims against inmate Waykenya Harris (ECF No. 12 at
1);

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3.

Amend his property claim against Defendant Johnny McDaniel to be
asserted under the Fifth, Eighth, and Fourteenth Amendments (ECF
No. 12 at 2);

4.

Amend his Eighth Amendment claim against Defendant McDaniel
by adding allegations that Defendant McDaniel ordered inmate
Waykenya Harris to attack Plaintiff (ECF No. 12 at 3); and

5.

Add as defendants the Georgia Department of Corrections as
“responsible custodian” and Warden Robert Toole as “officer in
charge” (ECF No. 12 at 1).

Federal Rules of Civil Procedure Rule 15(a)(1)(B) allows a party to amend its
pleading one time as a matter of course prior to the filing of a responsive pleading.
Consequently, Plaintiff is entitled to amend his Complaint this one time. However,
Plaintiff is not allowed to reassert claims or add back in parties that have already been
dismissed in this action. For example, Plaintiff cannot reassert claims against fellow
inmate Wakenya Harris as those claims were dismissed for failure to state a claim.
(Order, July 7, 2011, ECF No. 2.) Additionally, Plaintiff’s property claim was dismissed
for failure to state a claim (Id.) and cannot be reasserted, and Plaintiff’s claims against
Defendant McDaniel have already been interpreted as being asserted under section 1983.
Thus, Plaintiff’s Motion to Amend is GRANTED as to the following requested
amendments:
4.

Amend his Eighth Amendment claim against Defendant McDaniel
by adding allegations that Defendant McDaniel ordered inmate
Waykenya Harris to attack Plaintiff (ECF No. 12 at 3); and

5.

Add as defendants the Georgia Department of Corrections as
“responsible custodian” and Warden Robert Toole as “officer in
charge” (ECF No. 12 at 1).

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Plaintiff’s fifth requested amendment, however, requires additional consideration
pursuant to the Prisoner Litigation Reform Act’s preliminary review (“PLRA”). 28
U.S.C. § 1915A.
PRELIMINARY REVIEW OF
PLAINTIFF’S AMENDED COMPLAINT
I.

Standard for Preliminary Review
Plaintiff’s Amended Complaint is before the Court for initial screening pursuant to

the provisions of the PLRA. As codified at 28 U.S.C. § 1915A, the PLRA provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal. – On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint –
(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.
Additionally, the Court must review Plaintiff’s complaint pursuant to 28 U.S.C. §
1915(e)(2) which similarly requires the Court to dismiss an in forma pauperis complaint,
or any portion thereof, if the court determines that it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. “The standards governing dismissal
under Rule 12(b)(6) apply to § 1915(e)(2)(b)(ii).” Alba v. Montford, 517 F.3d 1249,
1252 (11th Cir. 2008). “A complaint is subject to dismissal for failure to state a claim if
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the allegations, taken as true, show [that] the plaintiff is not entitled to relief.” Jones v.
Bock, 549 U.S. 199, 215 (2007).
II.

Plaintiff’s Claims against the Department of Corrections and Warden Toole
Plaintiff claims that the Department of Corrections is liable under section 1983 as

the “responsible custodian” and that Warden Robert Toole is liable as the “officer in
charge” who “had custodial responsible (sic) to care for all inmates and nothing in the
rules and or regulations is contrary to the authority of the officer that was in charge[.]”
(ECF No. 12 at 1.) Plaintiff makes no specific allegation against either the Department of
Corrections or Warden Toole, but instead attempts to hold them liable solely for being
the employer or supervisor of Defendant McDaniel. However, “vicarious liability is
inapplicable to . . . § 1983 suits[.]” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
Consequently, “a plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.” Id. Consequently,
since Plaintiff has not alleged that any action committed by Warden Toole or the Georgia
Department of Corrections violates his Constitutional rights, Plaintiff’s claims against
these Defendants should be dismissed for failure to state a claim.
The Georgia Department of Corrections is also not subject to liability under §
1983 because it is not a “person” as defined by that statute.

42 U.S.C. § 1983.

Furthermore, the Georgia Department of Corrections is a state entity entitled to Eleventh
Amendment immunity. See Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989) (“The
Eleventh Amendment bars [the plaintiff’s section 1983] action against the Georgia
Department of Corrections[.]”). Thus, the Georgia Department of Corrections must be
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dismissed from this action for failure to state a claim and because this Defendant is
immune from suit.
WHEREFORE, Plaintiff’s motion to amend is GRANTED as discussed above.
Furthermore, IT IS HEREBY RECOMMENDED that Plaintiff’s claims against Warden
Toole and the Georgia Department of Corrections be DISMISSED under 28 U.S.C. §
1915A for Plaintiff’s failure to state a claim upon which relief may be granted and
because the Georgia Department of Corrections is immune from suit. Pursuant to 28
U.S.C. § 636(b)(1), Plaintiff may file objections to this Recommendation in writing with
the UNITED STATES DISTRICT COURT within FOURTEEN (14) DAYS after being
served with a copy hereof.
SO ORDERED and RECOMMENDED, this 19th day of September, 2011.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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