GHOLSTON v. HUMPHREY

Filing 201

ORDER ADOPTING as modified 175 Report and Recommendations; GRANTING 90 Motion to Dismiss; and DENYING 19 Motion for Temporary Restraining Order. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 12/10/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BENJAMIN MCIVER,
Plaintiff,
v.

CARL HUMPHREY, et al.,
Defendants.

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CIVIL ACTION NO. 5:12-CV-97 (MTT)
5:12-CV-119

ORDER
Before the Court is the Order and Recommendation of Magistrate Judge Stephen
Hyles. (Doc. 175). The Magistrate Judge recommends granting the Defendants’
motion to dismiss (Doc. 90) Plaintiff Benjamin McIver’s complaint1 because he failed to
exhaust his administrative remedies as to most of his Eighth Amendment claims, his
remaining Eighth Amendment claims based on withholding of food and denial of
showers fail to state a claim, and his Fourteenth Amendment procedural due process
claim2 based on being transferred to the Administrative Segregation Unit3 of the Georgia

1
The complaint is filed in McIver v. Humphrey, 5:12-CV-119, at Doc. 1. This case, along with
several others, was consolidated with Gholston v. Humphrey, 5:12-CV-97, on November 1,
2012. (Doc. 29).
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The complaint also alleges the Plaintiff’s “property is consistently confiscated for months at a
time without any type of hearing.” McIver, 5:12-CV-119, Doc. 1 at 6. To the extent the
complaint can be read as alleging a separate Fourteenth Amendment claim based on
deprivation of personal property, that claim fails because the State of Georgia provides an
adequate post-deprivation remedy. See Johnson v. Owens, 2014 WL 6620938, at *3 & n.8
(M.D. Ga.).

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The Plaintiff refers to the unit as the ASU in his complaint but as the SMU in his response to
the Defendants’ motion.

Diagnostic and Classification Prison fails to state a claim. The Magistrate Judge further
recommends denying the Plaintiff’s motion for a temporary restraining order. (Doc. 19).
The Plaintiff also moved to amend his complaint, but because his proposed amended
complaint was written on the back of another document, the Clerk returned the
document to the Plaintiff with instructions to properly refile it. Because the Plaintiff
never refiled his proposed amended complaint, the Magistrate Judge denied his motion
to amend. The Plaintiff has not objected to the Recommendation.
The Court agrees with the reasoning of the Magistrate Judge with regard to all
claims except the Plaintiff’s Eighth Amendment claim based on withholding of food. To
state a claim for an Eighth Amendment violation, a plaintiff must make a two-prong
showing: “an objective showing of a deprivation or injury that is ‘sufficiently serious’ to
constitute a denial of the ‘minimal civilized measure of life's necessities’ and a
subjective showing that the official had a ‘sufficiently culpable state of mind.’” Thomas
v. Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010) (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)). For claims based on prison conditions, the relevant state of mind is
deliberate indifference. Id. To show the prison official acted with deliberate
indifference, the Plaintiff must establish: “(1) subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by conduct that is more than [gross] negligence.”
Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir. 2007) (alteration in original)
(internal quotation marks and citation omitted).
Additionally, to hold a supervisory official liable for a constitutional violation, the
Plaintiff must show “that the supervisor either participated directly in the unconstitutional
conduct or that a causal connection exists between the supervisor's actions and the

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alleged constitutional violation.” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir.
2014). The requisite causal connection can be established if “a history of widespread
abuse puts the responsible supervisor on notice of the need to correct the alleged
deprivation, and he fails to do so”; the supervisor’s “custom or policy … result[s] in
deliberate indifference to constitutional rights”; or “when facts support an inference that
the supervisor directed the subordinates to act unlawfully or knew that the subordinates
would act unlawfully and failed to stop them from doing so.” Cottone v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003) (internal quotation marks and citations omitted).
The Magistrate Judge recommends dismissing the Plaintiff’s claim because,
while the complaint alleges the Plaintiff was “deprived of food for days as punishment
for speaking out on violations,” the allegation is too vague to state an Eighth
Amendment violation. Specifically, the complaint does not describe what “deprived” of
food means or sufficiently allege how long the deprivation lasted. While not all
deprivations of food rise to the level of an Eighth Amendment violation, the Eighth
Amendment does require that inmates be provided “reasonably adequate food.”
Hernandez v. Fla. Dep’t of Corr., 281 F. App’x 862, 865 (11th Cir. 2009); see also Berry
v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). At the motion to dismiss stage, the Court
finds the Plaintiff has alleged a deprivation that is “sufficiently serious” to meet the
objective prong of an Eighth Amendment violation.
Nonetheless, the Court finds the Plaintiff has not alleged sufficient facts to show
the requisite causal connection between the Defendants’ actions and the alleged
deprivation. He has not alleged any of the Defendants personally deprived him of food,
implemented a policy that inmates would be deprived of food as punishment, or even
that the Defendants were aware he was being deprived of food. For the same reasons,
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the Plaintiff has also failed to show the Defendants acted with deliberate indifference as
required to meet the subjective prong of an Eighth Amendment violation.
The Court has reviewed the Recommendation, and the Court accepts and adopts
the findings, conclusions, and recommendations of the Magistrate Judge except as
modified by this Order. The Recommendation is ADOPTED as modified and made the
order of this Court. Accordingly, the Defendants’ motion to dismiss (Doc. 90) is
GRANTED, the Plaintiff’s complaint is DISMISSED without prejudice, and the
Plaintiff’s motion for a temporary restraining order (Doc. 19) is DENIED.
SO ORDERED, this 10th day of December, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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