MILLER v. FARLEY et al

Filing 10

ORDER DIRECTING SERVICE and REPORT AND RECOMMENDATION re 8 Supplement to Complaint filed by TRACY R MILLER, 1 Complaint filed by TRACY R MILLER. Ordered by US Mag Judge Stephen Hyles on 12/27/11. (lws)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TRACY R. MILLER,

:
:
Plaintiff
:
:
VS.
:
:
GEORGIA DEPARTMENT OF
:
CORRECTIONS, et. al.,
:
:
Defendants
:
____________________________________

CIVIL No: 5:11-CV-465-MTT-MSH
PROCEEDINGS UNDER 42 U.S.C. '1983
BEFORE THE U. S. MAGISTRATE JUDGE

ORDER & RECOMMENDATION
Plaintiff TRACY R. MILLER, an inmate currently confined at the Pulaski State
Prison in Hawkinsville, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. '
1983. In an Order on December 6, 2011 (ECF No. 6), this Court granted Plaintiff’s
Motion to Proceed in forma paupers, but also required Plaintiff to supplement her original
Complaint. Plaintiff has now filed her Supplement (ECF No. 8), and the Court has
accordingly reviewed both Plaintiff’s Complaint and Supplement as required by 28 U.S.C.
§ 1915A. Having done so, the Court finds that Plaintiff’s claims against Defendants
Farley, Williams, and Austin are sufficient to survive the preliminary review. It is
RECOMMENDED, however, that all other claims and Defendants be DISMISSED from
this action pursuant to 29 U.S.C. 1915A(b)(1) &(2).
STANDARD OF REVIEW
Because Plaintiff is a prisoner “seeking redress from a governmental entity or [an]
officer or employee of a governmental entity,” this Court is required to conduct a

preliminary screening of her Complaint. See 28 U.S.C. ' 1915A(a). In so doing, the
district court must accept all factual allegations in the Complaint as true. Brown v. Johnson,
387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings, like the one in this case, are also
“held to a less stringent standard than pleadings drafted by attorneys” and must be
“liberally construed.@ Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998). Nonetheless, a district court may still dismiss a prisoner complaint after the initial
review if it finds that the complaint (1) “is frivolous, malicious, or fails to state a claim
upon which relief may be granted@; or (2) Aseeks monetary relief from a defendant who is
immune from such relief.@ 28 U.S.C. §1915A(b); see also 28 U.S.C. §1915(2)(B)
(requiring the same of prisoners proceeding in forma pauperis).
A claim is frivolous when it appears from the face of the complaint that the factual
allegations are Aclearly baseless@ or that the legal theories are Aindisputably meritless.@
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint is thus properly
dismissed by the district court sua sponte if it is found to be “without arguable merit either
in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
A complaint fails to state a claim when it does not include Aenough factual matter
(taken as true)@ to Agive 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). The
“factual allegations must be enough to raise a right to relief above the speculative level.@ Id.
In other words, the complaint must contain something more than “a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action.” Id. A[T]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
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not suffice.@ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
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 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 hers claim or claims, the complaint is subject to dismissal. See Chappell v. Rich,
340 F.3d 1279, 1282-84 (11th Cir. 2003); see also 28 U.S.C. § 1915A(b).
DISCUSSION
In this case, Plaintiff’s Complaint & Supplement allege that a fire caused black
smoke to fill Plaintiff’s room one night, that no alarm ever sounded, and that Defendants
Lieutenant Farley, Officer Williams, and Officer Austin failed to come to her assistance
despite her screams and repeated pleas for help. It appears that Plaintiff did not suffer any
physical injury as a result of the fire or smoke inhalation, though Plaintiff does allege that
the experience caused lasting “psychological” damage. She claims to suffer from mental
distress, anxiety, irritability, depression, “flashbacks,” and fear of enclosed spaces.
Plaintiff does not allege, however, that these “conditions” require medical treatment.
These allegations, when read in a light most favorable to the Plaintiff, do arguably
state a colorable claim for relief under 42 U.S.C. § 1983 and 28 U.S.C. §1915A. See Hale,
50 F.3d at 1581.

If true, the allegations suggest that the named Defendants were

deliberately indifferent to Plaintiff’s health or safety. A prison official may be held liable
for acting with “deliberate indifference” to an inmate’s health or safety if he knows that the
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inmate faces a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it. Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996);
Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1774, 128 L.Ed.2d 811 (1994)).
Plaintiff may not, however, recover compensatory or punitive damages for her
“injuries” arising from Defendants’ alleged conduct. Under the Prison Litigation Reform
Act (“PLRA”), “[n]o Federal civil action may be brought by a prisoner . . . for mental or
emotional injury suffered while in custody without a prior showing of a physical injury”
which is more than de minimis. 42 U.S.C. § 1997e(e); Mitchell v. Brown & Williamson
Tobacco Corp., 294 F.3d 1309, 1312-13 (11th Cir. 2002). Plaintiff has not alleged that
she suffered any non-de minimis physical injuries as a result of Defendants inaction, and
the “psychological” injuries suffered by Plaintiff are insufficient to establish a “physical
injury” under the PLRA. See Chatham v. Adcock, 334 Fed. Appx. 281, 284 (11th Cir.
2009) (“anxiety, nightmares, and hallucinations [] do not rise to the level of a physical
injury that is “greater than de minimis”). Though Plaintiff may have been placed at a risk
of physical harm when the fire broke out, a § 1983 claim arises only when the harm occurs,
not simply because the possibility of harm arises. See Babcock v. White, 102 F.3d 267,
270-73 (7th Cir.1996) (mere exposure to harm that never materializes is not actionable
under the Eighth Amendment).
Nonetheless, nominal damages may still be available to Plaintiff in this case. See
Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir.2003) (concluding that “[n]ominal damages
are appropriate if a plaintiff establishes a violation of a fundamental constitutional right,
even if he cannot prove actual injury sufficient to entitle him to compensatory damages”).
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Though these damages do not ordinarily exceed $1.00, Carey v. Piphus, 435 U.S. 247,
266-67, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978), Plaintiff’s Complaint does expressly
seek to recover “nominal damages” for her injuries. For this reason, Plaintiff’s claims
against Defendants Farley, Williams, and Austin will be permitted to proceed.
Plaintiff, however, should not be permitted to pursue her claims against “Georgia
Department of Corrections” and “Pulaski State Prison.”1 As Plaintiff has been previously
advised, these entities cannot be sued under § 1983. See Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Stevens v. Gay,
864 F.2d 113, 115 (11th Cir. 1989) (“The Eleventh Amendment bars this action against the
Georgia Department of Corrections[.]”); Brinson v. Coastal State Prison, 2009 WL
890574 at *2 (S.D. Ga. Apr. 1, 2009) (“Coastal State Prison has no independent legal
existence and, therefore, is not an entity that is subject to suit under § 1983.”). It is
accordingly RECOMMENDED that Defendants “Georgia Department of Corrections” and
“Pulaski State Prison” be DIMISSED from this action.
Plaintiff has also failed to state a claim against Defendant Warden Belinda Davis.
Neither the Complaint nor the Supplement contain any allegations that Warden Davis was
personally involved in the alleged constitutional violations. It is of course well-settled
that wardens are not liable under § 1983 for the unconstitutional acts of their subordinates
merely because of their position or supervisory responsibilities. Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003). It is thus also RECOMMENDED that Defendant

1 Though not listed on the Docket, “Pulaski State Prison” is a named Defendant in the caption of

Plaintiff’s original Complaint.
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Warden Davis also be DISMISSED from this action.
CONCLUSION
For the reasons discussed above, the Court finds that Plaintiff’s claims against
Defendants Farley, Williams, and Austin are sufficient to survive the preliminary review.
It is thus ORDERED that service be made on these 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, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendants
are also reminded of their duty to avoid unnecessary service expenses, and of the possible
imposition of expenses for failure to waive service pursuant to Rule 4(d).
It is RECOMMENDED, however, that all other claims and Defendants be
DISMISSED from this action. See 28 U.S.C. 1915A(b).

Pursuant to 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 fourteen (14) days after being served a
copy of this Order.
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 she must diligently prosecute his complaint or face the
possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil
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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, 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 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 Defendants from whom discovery is sought by Plaintiff.
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

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are authorized to seek discovery from one another as provided in the FEDERAL RULES
OF CIVIL PROCEDURE. The Plaintiff’s deposition may be taken at any time during the
time period hereinafter set out provided prior arrangements are made with her custodian.
Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal
of her lawsuit under Rule 37 of the Federal Rules of Civil Procedure.
IT IS HEREBY ORDERED that discovery (including depositions and
interrogatories) shall be completed within 90 days of the date of filing of an answer or
dispositive motion by Defendants (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 Defendants and granted by the court. This 90-day period shall run separately as to 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 or served upon him 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
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FEDERAL RULES OF CIVIL PROCEDURE may not exceed FIFTEEN (15) requests to
each party. No party is required to respond to any request 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
in the absence 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.
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 she 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 her prior to the collection of the full filing fee.
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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, she 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 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 she has the ability to make monthly payments and fails to do so.
SO ORDERED, this 27th day of December, 2011.
S/STEPHEN HYLES
UNITED STATES MAGISTRATE JUDGE

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