GHOLSTON v. HUMPHREY

Filing 164

ORDER granting 116 MOTION to Dismiss Amended Complaint filed by DEANTE GHOLSTON, 119 MOTION for Extension of Time to File to Oppose Defendant's Motion to Dimiss filed by DEANTE GHOLSTON, and 159 MOTION to Withdraw Document 156 MOTION to Amend/Correct; denying 155 MOTION to Appoint Counsel filed by DEANTE GHOLSTON; and dismissing 100 MOTION to Amend/Correct 1 Complaint filed by DEANTE GHOLSTON, and 156 MOTION to Amend/Correct filed by DEANTE GHOLSTON. REPO RT AND RECOMMENDATION recommending granting 86 MOTION to Dismiss Complaint filed by CARL HUMPHREY, and recommending denying 8 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by DEANTE GHOLSTON. Ordered by US Magistrate Judge STEPHEN HYLES on 9-2-14. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DEANTE GHOLSTON,
Plaintiff,
v.
CARL HUMPHREY,
Defendant.

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CASE NO: 5:12-CV-97-MTT-MSH
42 U.S.C. § 1983

ORDER AND RECOMMENDATION
Presently pending before the Court is Defendant’s motion to dismiss Plaintiff’s
Complaint.

(ECF No. 86.)

Also pending are Plaintiff’s motions for a temporary

restraining order (TRO) (ECF No. 8) and appointment of counsel (ECF No. 155).1 For the
reasons explained below, it is recommended that Defendants’ motion to dismiss be
granted, and Plaintiff’s motions for TRO and appointment of counsel be denied.
BACKGROUND
Plaintiff, an inmate currently confined at the Georgia Diagnostic and Classification
Prison (GD&CP) in Jackson, Georgia, filed the instant lawsuit under 42 U.S.C. § 1983
alleging constitutional civil rights violations against Warden Carl Humphrey.2 (Compl. 1,
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Plaintiff also has pending the following motions: a motion to amend the complaint (ECF
No. 100); a motion to voluntarily withdraw document 100 (ECF No. 116); a motion for extension
of time to file a response (ECF No. 119); a motion to amend the complaint (ECF No. 156); and a
motion to withdraw document 156 (ECF No. 159). Plaintiff’s motions to withdraw (ECF Nos.
116, 159) are hereby GRANTED, and the motions to amend (ECF Nos. 100, 156) are hereby
WITHDRAWN. Plaintiff’s motion for an extension of time (ECF No. 119) is GRANTED.
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Plaintiff also claims to sue a number of “John/Jane Doe” defendants. However, Plaintiff
has made no attempt to determine the identities of the fictitious defendants to date. Fictitious

ECF No. 1-1.) Plaintiff claims that Defendant violated his Fourteenth Amendment right
to due process in Plaintiff’s placement in the Special Management Unit (SMU) of the
prison, and his Eighth Amendment right to be free from cruel and unusual punishment in
the conditions of his confinement at the SMU. (Id. at 1-2.)
Plaintiff asserts the following as cruel and unusual conditions in the SMU:
placement of inmates in a “strip cell” for “days at a time” (Id. at 4); deprivation of food for
a day (Id. at 5); limitation of showers to three times per week (Id.); denial of physical
exercise (Id. at 4); poor lighting in cells at night (Id. at 5); metal strips on cell doors to
prevent communication between inmates (Id. at 6); limited and “scrutinized” visitation (Id.
at 5); lack of educational programs (Id. at 5, 7); handcuffing of inmates when transported
(Id. at 6); and use of handcuffs as “brass knuckles” against inmates (Id. at 5). Plaintiff
further alleges that Defendant has violated his due process rights by classifying him in the
SMU without proper notice and explanation of the reasons therefor. (Id. at 6.)
Defendant Humphrey moves to dismiss the Complaint for a number of reasons.
(Def.’s Mot. to Dismiss, ECF No. 86.) As to the claim for violation of Plaintiff’s due
process rights, Defendant argues that Plaintiff’s Complaint does not state a claim in that it
fails to show he has a liberty interest in not being held in the SMU. (Def.’s Br. in Supp. of
Mot. to Dismiss 8-10, ECF No. 86-1.) As to Plaintiff’s Eighth Amendment claims,

party pleading is not generally permitted in federal court. A plaintiff may sue an unknown
defendant only when he sufficiently identifies the defendant to allow service of process. Moulds v.
Bullard, 345 F. App’x 387, 390 (11th Cir. 2009); Dean v. Barber, 951 F.2d 1210, 1215-16 (11th
Cir. 1992). At this point in the litigation, Plaintiff has had sufficient opportunity to ensure service
of process upon the “John/Jane Does” listed in his Complaint. Because he has not done so, they
are dismissed as defendants from this action.

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Defendant argues that Plaintiff failed to properly exhaust all but two of his claims prior to
filing this suit, as required by the Prisoner Litigation Reform Act (PLRA), 42 U.S.C. §
1997e(a). (Id. at 3.) Finally, as to the remaining Eighth Amendment claims, Defendant
argues that Plaintiff’s Complaint fails to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (Id. at 16, 18.) The motion is now ripe for review, as are
Plaintiff’s motions for appointment of counsel and for a temporary restraining order.
DISCUSSION
I.

Motion to Dismiss
A.

Standard of Review

When considering a Rule 12(b)(6) motion to dismiss, the Court must accept as true
all facts set forth in the plaintiff’s complaint and limit its consideration to the pleadings and
exhibits attached thereto.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007);

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). “To survive a
motion to dismiss, a complaint must contain 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 Twombly, 550 U.S. at 570). The complaint must include sufficient factual
allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555. “[A] formulaic recitation of the elements of a cause of action will not do[.]” Id.
Although the complaint must contain factual allegations that “raise a reasonable
expectation that discovery will reveal evidence of” the plaintiff’s claims, id. at 556, “Rule
12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a
savvy judge that actual proof of those facts is improbable.’” Watts v. Fla. Int’l Univ., 495

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F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).
B.

Eighth Amendment Conditions of Confinement Claims
1. Exhaustion of Administrative Remedies

Defendant moves to dismiss much of Plaintiff’s Complaint claiming that Plaintiff
failed to exhaust his administrative remedies prior to filing this action. (Def.’s Br. in
Supp. of Mot. to Dismiss 3.) Plaintiff’s response to the motion to dismiss does not
respond to this argument. (Pl.’s Resp. to Def.’s Mot. to Dismiss, ECF No. 131.) As
explained below, the Court agrees that Plaintiff has failed to exhaust his administrative
remedies as to all of his Eighth Amendment claims except those for lack of educational
programs and lack of exercise. Consequently, all other claims regarding the conditions of
his confinement in the SMU should be dismissed.
Title 42, United States Code section 1997e(a) provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title . . . by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.” “[W]hen a state provides a grievance procedure for its
prisoners, as Georgia does here, an inmate alleging harm suffered from prison conditions
must file a grievance and exhaust the remedies available under that procedure before
pursuing a § 1983 lawsuit.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005)
(internal quotation marks and citation omitted). The argument that a plaintiff has failed to
satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant v. Rich, 530 F.3d
1368, 1375 (11th Cir. 2008) (“[E]xhaustion should be decided on a Rule 12(b) motion to
dismiss[.]”). Furthermore, since dismissal for failure to exhaust is not an adjudication on

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the merits, the Court can resolve factual disputes using evidence from outside the
pleadings. Id. at 1376.
“[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a
two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the
court looks to the factual allegations in the defendant’s motion to dismiss and those in the
plaintiff’s response, and if they conflict, takes the plaintiff’s versions of the facts as true.”
Id. If, taking plaintiff’s facts as being true, the defendant is entitled to dismissal for failure
to exhaust, then the complaint should be dismissed. Id. “If the complaint is not subject
to dismissal at the first step . . . , the court then proceeds to make specific findings in order
to resolve the disputed factual issues related to exhaustion.” Id. The defendant bears the
burden of proof during this second step. Id.
Because Plaintiff has not contested Defendant’s factual allegations, this argument
can be decided on step one of the analysis. Defendant shows the Court that GD&CP had a
grievance procedure in place at the time the alleged violations took place. (Def.’s Br. in
Supp. of Mot. to Dismiss 5.) The procedure is a three-step process requiring an informal
grievance, a formal grievance, and an appeal. (Mot. to Dismiss, Ex. A. Aff. of Gary
Caldwell 3, ECF No. 86-2.) Defendant argues that prior to the filing of this Complaint,
Plaintiff had filed only two grievances regarding conditions of confinement at GD&CP.
(Def.’s Br. in Supp. of Mot. to Dismiss 6.) Those grievances challenged the lack of
educational programs available to inmates and the lack of physical exercise.

(Id.)

Defendant asserts that Plaintiff has exhausted no other grievances with respect to his other
Eighth Amendment claims.

Plaintiff has not argued otherwise.

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Consequently,

Defendant has shown that Plaintiff failed to exhaust his administrative remedies with
regard to all of his claims for violations of the Eighth Amendment except the lack of
educational programs and lack of exercise. It is therefore recommended that all other
Eighth Amendment claims be dismissed.
2. Failure to State a Claim
Defendant argues that Plaintiff’s remaining claims fail to state a claim upon which
relief can be granted under 42 U.S.C. § 1983. The cruel and unusual punishment standard
of the Eighth Amendment requires prison officials to “ensure that inmates receive adequate
food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Generally speaking, however, “prison conditions rise to the level of an Eighth Amendment
violation only when they involve the wanton and unnecessary infliction of pain.” Chandler
v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (quotations omitted). Thus, not all
deficiencies and inadequacies in prison conditions amount to a violation of a prisoner’s
constitutional rights. Rhodes v. Chapman, 452 U.S. 337, 349 (1981). The Constitution
does not mandate comfortable prisons. Id.

Prison conditions violate the Eighth

Amendment only when the prisoner is deprived of “the minimal civilized measure of life’s
necessities.” Id. at 347.
Therefore, to prevail on a conditions of confinement claim, a plaintiff must first
show that the challenged conditions are objectively and sufficiently serious, or extreme, so
as to constitute a denial of the “minimal civilized measure of life's necessities.” Thomas v.
Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010). This standard is met when the challenged
conditions pose “an unreasonable risk of serious damage to [the prisoner’s] future health or

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safety,” Chandler, 379 F.3d 1289, or if society otherwise “considers the risk that the
prisoner complains of to be so grave that it violates contemporary standards of decency to
expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 37 (1993).
When multiple conditions are alleged, the district court must consider “the totality of the
confinement conditions” to determine if the conditions evidence a constitutional
deficiency.

Wilson v. Blankenship, 163 F.3d 1284, 1292 (11th Cir. 1998). “Some

conditions of confinement may establish an Eighth Amendment violation ‘in combination’
when each would not do so alone.” Wilson v. Seiter, 501 U.S. 294, 304 (1991). However,
this is found “only when [the conditions alleged] have a mutually enforcing effect that
produces the deprivation of a single, identifiable human need such as food, warmth, or
exercise . . . .” Id. Defendant argues that Plaintiff’s claims of lack of physical exercise and
lack of educational programs fail to satisfy these requirements. (Def.’s Br. in Supp. of
Mot. to Dismiss 16, 18.)
First, Plaintiff’s Complaint alleges generally that in the SMU “physical exercise is
denied for month’s [sic] at a time and when allowed only twice a week.” (Compl. 4.)
However, Plaintiff fails to allege that he was personally denied exercise privileges for an
extended period, only that such denials occur in the SMU. Furthermore, even accepting
as true that Plaintiff is only allowed two periods of exercise per week, this does not show a
constitutional violation. See e.g. Bass v. Perrin, 170 F.3d 1312, 1317 (11th Cir. 1999.)
(“the complete denial to the plaintiffs of outdoor exercise, although harsh, did not violate
the Eighth Amendment.”) Plaintiff has not alleged a constitutional violation.
Next, Plaintiff alleges that inmates held in the SMU are not given access to

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educational programs which are sometimes required in order to qualify for parole
eligibility. (Compl. 5, 7.) Defendant correctly responds that Georgia inmates have no
constitutional right to either educational programs or parole, and therefore the alleged
denial of either or both is insufficient to state a claim under § 1983. (Def.’s Br. in Supp. of
Mot. to Dismiss 18.) “The law is well settled that an inmate has no constitutionally
protected interest in trade school or other educational program as the failure to place an
inmate in any such program does not impose atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”

Thompkins v. Hayes,

2:06-CV-1106-MEF, 2007 WL 128797 at *2 (M.D. Ala. Jan. 12, 2007). Furthermore, the
Eleventh Circuit has found that “the Georgia parole system does not create a liberty interest
protected by the Due Process Clause.” Sultenfuss v. Snow, 35 F.3d 1494, 1499 (11th Cir.
1994). Therefore, Plaintiff’s allegations fail to state a claim of violation of the Eighth
Amendment and should be dismissed.
C.

Fourteenth Amendment Due Process Claim

Plaintiff contends that Defendant violated his right to due process in classifying and
confining him to the Special Management Unit of GD&CP. Defendant moves to dismiss
the claims arguing that Plaintiff has not stated a claim for denial of his procedural due
process rights. It is well-settled that prisoners have “no constitutionally protected liberty
interest in being classified at a certain security level or housed in a certain prison.” Kramer
v. Donald, 286 F. App’x 674, 676 (11th Cir. 2008); see also Meachum v. Fano, 427 U.S.
215, 223-24 (1976) (finding the transfer of a prisoner to less agreeable prison does not
implicate a liberty interest). However, a prisoner may claim a violation of a protected

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liberty interest arising out of his confinement in punitive segregation if the placement (1)
“will inevitably affect the duration of his sentence;” or (2) “imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995).
Plaintiff’s complaint fails to show either of these requirements. Initially, the Court
notes that Plaintiff does not specifically allege that his placement in the SMU was punitive,
only that he was not told the reasons for his classification. Plaintiff also makes no
allegation that his placement in the SMU “will inevitably affect the duration of his
sentence.”3 Furthermore, Plaintiff fails to even allege how the conditions in the SMU
differ from the “ordinary incidents of prison life,” and certainly has not made a compelling
argument that they are an “atypical and significant hardship.” Plaintiff’s repeated use of
that phrase in his Complaint and Response to the Motion to Dismiss does not fulfill the
pleading requirement. Something more than the conclusory statement that the listed
conditions are an “atypical and significant hardship” is required; Plaintiff must state or
allege facts that show an “atypical and significant hardship.” Plaintiff has therefore failed
to state a claim for a due process violation, and Defendant’s motion should be granted.
II.

Motion to Appoint Counsel
Plaintiff requests that the Court appoint counsel to assist in this case due to his

indigency. (ECF No. 155.) Under 28 U.S.C. § 1915(e)(1), the district court “may
request an attorney to represent any person unable to afford counsel.” However, there is
3

Although Plaintiff argues that the denial of educational programs could limit parole
eligibility, the Court has already held that Georgia inmates do not have a liberty interest in parole
eligibility sufficient to implicate the Due Process Clause.

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“no absolute constitutional right to the appointment of counsel.” Poole v. Lambert, 819
F.2d 1025, 1028 (11th Cir. 1987). Appointment of counsel is a privilege that is justified
only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In
deciding whether legal counsel should be provided, the Court should consider, among
other factors, the merits of Plaintiff’s claim and the complexity of the issues presented.
Holt v. Ford, 682 F.2d 850, 853 (11th Cir. 1989). Plaintiff has set forth the essential
factual allegations underlying his claims, and the applicable legal doctrines are readily
apparent. Plaintiff therefore has not alleged the exceptional circumstances justifying
appointment of counsel under Holt.

Furthermore, because the Court recommends

granting Defendant’s motion to dismiss, Plaintiff’s request for appointment of counsel is
moot. Accordingly, Plaintiff’s motion for appointment of counsel (ECF No. 155) is
denied.
III.

Motion for Temporary Restraining Order/Preliminary Injunction
Plaintiff also seeks relief in the form of a temporary restraining order against

Defendant. (Pl.’s Mot. for Prelim. Inj., ECF No. 8.)

Such relief is only appropriate

where the movant demonstrates that: (a) there is a substantial likelihood of success on the
merits; (b) the preliminary injunction is necessary to prevent irreparable injury; (c) the
threatened injury outweighs the harm that a preliminary injunction would cause to the
non-movant; and (d) the preliminary injunction would not be adverse to the public interest.
Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001). An
irreparable injury “must be neither remote nor speculative, but actual and imminent.”
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (citations omitted). As detailed

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above, the Court finds that Plaintiff’s claims should be dismissed. Therefore, Plaintiff has
failed to show a “substantial likelihood of success on the merits.” Accordingly, it is
recommended that Plaintiff’s motion for injunctive relief (ECF No. 8) be denied.
CONCLUSION
WHEREFORE, for the reasons explained above, it is RECOMMENDED that
Defendant’s motion to dismiss the complaint (ECF No. 86) be GRANTED. It is further
RECOMMENDED that Plaintiff’s motion for injunctive relief (ECF No. 8) be DENIED.
Under 28 U.S.C. § 636(b)(1), the parties may file objections to this Recommendation in
writing with the United States District Judge within fourteen (14) days after being served
with a copy hereof. It is also ORDERED that Plaintiff’s motion for appointment of
counsel (ECF No. 155) is DENIED, Plaintiff’s motion for an extension of time (ECF No.
119) and motions to withdraw documents (ECF Nos. 116, 159) are GRANTED, and
Plaintiff’s motions to amend (ECF Nos. 100, 156) are WITHDRAWN.
SO ORDERED and RECOMMENDED, this 2nd day of September, 2014.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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