SPIVEY v. HUMPHRIES et al
Filing
13
ORDER granting IFP motion, REPORT AND RECOMMENDATION as to some claims and Defendants, and ORDER Directing Service as to remaining Defendants. Ordered by US Mag Judge Stephen Hyles on 1/17/12. (lws)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MANDRIEZ SPIVEY,
Plaintiff,
VS.
Sergeant BALL, et al.,
Defendants.
_________________________________
:
:
:
:
:
:
:
:
:
NO. 5:11-CV-274-MTT-MSH
42 U.S.C. § 1983
ORDER AND RECOMMENDATION
Plaintiff MANDRIEZ SPIVEY, an inmate at Augusta State Medical Prison
(“ASMP”), has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No.
1). Plaintiff filed an amendment to his complaint (ECF No. 10), which this Court has
considered along with his complaint.1
Plaintiff also seeks leave to proceed in forma pauperis (ECF No. 9). In compliance
with this Court’s prior Order, Plaintiff has submitted a copy of his trust fund account
statement (ECF No. 12). Based on Plaintiff’s submissions, the Court finds that Plaintiff is
unable to prepay the filing fee. Accordingly, the Court GRANTS Plaintiff’s motion to
proceed in forma pauperis and waives the initial partial filing fee pursuant to 28 U.S.C. §
1915(b)(1). Plaintiff is nevertheless obligated to pay the full filing fee, in installments, as
1
Also before the Court is a motion that the Clerk’s Office has docketed as a “Motion for an Investigation”
(ECF No. 8). In his motion, Plaintiff asks this Court to dispatch an investigator or a team of agents to
investigate his allegations. It is not this Court’s role to provide an investigator for Plaintiff. As noted below,
Plaintiff will be afforded the opportunity to conduct discovery. Accordingly, Plaintiff’s motion is DENIED.
will be directed later in this Order and Recommendation. The Clerk of Court is directed to
send a copy of this Order to the business manager of ASMP.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial
screening of a prisoner complaint “which seeks redress from a governmental entity or officer
or employee of a governmental entity.” Section 1915A(b) requires a federal court to dismiss
a prisoner complaint that is: (1) “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 when it appears from the face of the complaint that the factual
allegations are “clearly baseless” or that the legal theories are “indisputably meritless.”
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint fails to state a claim when
it does not include “enough factual matter (taken as true)” to “give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests[.]” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007) (noting that “[f]actual allegations must be enough
to raise a right to relief above the speculative level,” and that the complaint “must contain
something more . . . than … a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”) (internal quotations and citations omitted); see also Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (explaining that “threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice”).
2
In making the above determinations, all factual allegations in the complaint must be
viewed as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover, “[p]ro
se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998).
In order to state a claim for relief under section 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 County, 50 F.3d 1579, 1581
(11th Cir. 1995). If a litigant cannot satisfy these requirements, or fails to provide factual
allegations in support of his claim or claims, then the complaint is subject to dismissal. See
Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming the district court’s
dismissal of a section 1983 complaint because the plaintiffs factual allegations were
insufficient to support the alleged constitutional violation). See also 28 U.S.C. 1915A(b)
(dictating that a complaint, or any portion thereof, that does not pass the standard in section
1915A “shall” be dismissed on preliminary review).
II. BACKGROUND
Plaintiff’s claims arise out of his previous confinement at Georgia Diagnostic and
Classification. On June 20, 2011, Plaintiff, who was attempting to protest his confinement
in segregation, began to “buck” his food tray. Defendants Sergeant Ball, Officer Baker, and
3
an Officer named either Solomon or Townsend intervened and wedged Plaintiff’s arm
between the tray and the opening in Plaintiff’s cell door for eight minutes. Plaintiff states
that as a result of the altercation, he suffered bruises, swelling, loss of movement in his wrist
and fingers, and nerve damage.
Plaintiff was thereafter taken to medical where Defendants Dr. Burnside and Nurse
Gore allegedly failed to provide Plaintiff with treatment for his arm and hand. According to
Plaintiff, Burnside told him that either Plaintiff’s arm was going to get better on its own or
it would not.
Plaintiff alleges that, on one or more occasions, he told the following Defendants that
he needed medical care for his injuries: Deputy Warden Powell, Deputy Warden Malone,
Unit Manager Mintz, Captain McMillian, Lieutenant Williams, Sergeant Beasley, and
Officer Daniels.
In addition to the above defendants, Plaintiff sues Warden Carl Humphries for his failure to
supervise his employees. In his amendment, Plaintiff states he wishes to sue Governor
Nathan Deal and Commissioner Brian Owens, but he alleges no facts involving these
individuals.2
Finally, Plaintiff generally alleges that various unspecified Defendants
participated in a “conspiracy” by denying Plaintiff medical care, placing microphones and
cameras in Plaintiff’s cell, and “put[ting] something” in Plaintiff’s food and drink.
III. DISCUSSION
2
Plaintiff initially complained about his parole process, but he abandons that claim in his amendment (ECF
No. 10).
4
A. Dismissed Defendants and Claims
Plaintiff alleges no facts whatsoever involving Governor Deal and Commissioner
Owens. He thus clearly has not stated a colorable claim against them. Douglas v. Yates, 535
F.3d 1316, 1322 (11th Cir. 2008) (citing Pamel Corp. v. P.R. Highway Auth., 621 F.2d 33,
36 (1st Cir. 1980) (“While we do not require technical niceties in pleading, we must demand
that the complaint state with some minimal particularity how overt acts of the defendant
caused a legal wrong.”).
With respect to Warden Humphries, Plaintiff summarily alleges that Humphries failed
to supervise medical personnel. “[S]upervisory officials are not liable under § 1983 for the
unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious
liability.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.1999) (quotation marks
omitted). A supervisor may be liable only if he: “(1) instituted a custom or policy which
resulted in a violation of the plaintiff’s constitutional rights; (2) directed his subordinates to
act unlawfully; or (3) failed to stop his subordinates from acting unlawfully when he knew
they would.” Gross v. White, 2009 WL 2074234 at *2 (11th Cir. July 17, 2009) (citing
Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007)). Plaintiff has not alleged any
of the above prerequisites for supervisory liability of Humphries.
As to Plaintiff’s conspiracy claim, Plaintiff conclusorily alleges conspiracy among
various Defendants, but provides no specific factual allegations supporting the existence of
a conspiracy.
5
Such allegations are both without any basis in fact and insufficient to support a claim of
conspiracy.
Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“a finding of factual
frivolousness is appropriate when the facts alleged rise to the level of the irrational or the
wholly incredible”); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) (“A complaint
may justifiably be dismissed because of the conclusory, vague and general nature of the
allegations of conspiracy.”).
In light of the above, it is hereby RECOMMENDED that Defendants Governor Deal,
Commissioner Owens, and Warden Humphries be DISMISSED as Defendants herein and
that Plaintiff’s conspiracy claim also be DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1), the Plaintiff may file written objections to this
recommendation with the United States District Judge to whom this case is assigned
WITHIN FOURTEEN (14) DAYS after being served with a copy hereof.
B. Remaining Defendants
Construing Plaintiff’s complaint liberally in his favor, as this Court must do at this
early stage of the proceeding, the Court will allow this case to go forward against Defendants
Sergeant Ball, Officer Baker, Dr. Burnside, Nurse Gore, Deputy Warden Powell, Deputy
Warden Malone, Unit Manager Mintz, Captain McMillian, Lieutenant Williams, Sergeant
Beasley, Officer Daniels, and the Officer named either Solomon or Townsend. For service
upon this latter Defendant, Plaintiff describes him as a black male, bald with glasses, 6'2" in
height, and 320 pounds. Accordingly, it is hereby ORDERED that service be made on the
6
above Defendants and that they file an Answer, or such other response as may be appropriate
under Rule 12 of the FEDERAL RULES OF CIVIL PROCEDURE, U.S.C. § 1915, and the Prison
Litigation Reform Act. Defendants are 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).
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall at all times 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 any change of address may result in the dismissal of a party’s
pleadings filed herein.
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 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, DISCOVERY AND
CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and
7
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
address), when service was made, and how service was accomplished (i.e., by U.S. Mail, by
personal service, etc.).
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has been
filed on behalf of the defendants from whom discovery is sought by the plaintiff. The
defendants 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 interrogatories)
8
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 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 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
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
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
9
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.
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
10
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.
SO ORDERED AND RECOMMENDED, this 17th day of January, 2012.
S/ STEPHEN HYLES
UNITED STATES MAGISTRATE JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?