DURHAM v. MCLAUGHLIN et al

Filing 9

ORDER DISMISSING WITHOUT PREJUDICE 1 Plaintiff's Complaint. Ordered by Judge Marc Thomas Treadwell on 8/2/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
VERNIE A. DURHAM,

:
:
Plaintiff
:
:
VS.
:
:
GREGORY MCLAUGHLIN, et. al.,
:
:
Defendants
:
________________________________:

CIVIL No: 5:13-CV-0142-MTT-MSH

ORDER
Plaintiff Vernie A. Durham, an inmate currently confined at Macon State Prison,
has filed a pro se civil rights complaint under 42 U.S.C. § 1983 and is proceeding in forma
pauperis. In an order dated April 23, 2013, the United State Magistrate Judge directed
Plaintiff to supplement his Complaint. Plaintiff was given twenty-one days to comply and
was advised that a failure to comply may result in the dismissal of his Complaint. Plaintiff
later requested an extension of time, and he was given an additional twenty-one days to
file his supplement. When that time expired, Plaintiff was ordered to respond and show
cause why his Complaint should not be dismissed for failure to comply.
Plaintiff has now filed a response to the Show Cause Order. In his response
(Doc. 8), Plaintiff asserts that he has been unable to supplement his Complaint within the
forty-day period provided because he has limited access to the prison law library.
Plaintiff’s lack of access to the law library is not an excuse for his failure to comply with the
Court’s order to supplement his Complaint. The Magistrate Judge’s Order directed
Plaintiff to supplement his Complaint with more specific factual allegations. This does
not require legal research. Plaintiff needed only to more fully describe the events giving

rise to his claims.
Because Plaintiff failed to comply with the Court’s Order to supplement his
Complaint and has now failed to show good cause for that failure, the Court will proceed
with the preliminary review required by 28 U.S.C. §1915A(a). When conducting
preliminary screening pursuant to 28 U.S.C. § 1915A(a), 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 will, therefore, be “liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). A
pro se prisoner’s pleading is nonetheless subject to dismissal prior to service if the court
finds that the complaint, when viewed liberally and in the light most favorable to the
plaintiff, is frivolous or malicious or that the complaint otherwise fails to state a claim upon
which relief may be granted. See 28 U.S.C. §1915A(b)(1). See also 28 U.S.C.
§1915(e) (requiring the same when a plaintiff is proceeding in forma pauperis).
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, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007). To state a cognizable claim, the allegations in the
complaint must also do more than “merely create[] a suspicion [of] a legally cognizable
right of action.” Id. at 555; see also, Marsh v. Butler County, Ala., 268 F.3d 1014, 1037
(11th Cir. 2001) (en banc) (citation omitted) (“Pleadings must be something more than an
ingenious academic exercise in the conceivable.”). “The tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.

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Threadbare recitals of the elements of cause of action, supported by mere conclusory
statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 1949,
173 L.Ed.2d 868 (2009). Therefore, to survive a §1915A preliminary review, a prisoner’s
complaint must “raise the right to relief above the speculative level” by alleging facts that
create “a reasonable expectation” that discovery will reveal the evidence necessary to
prove a claim. See Twombly, 550 U.S. at 555-556.
In this case, Plaintiff’s Complaint alleges that he was denied medical care for a
shoulder injury. The Complaint fails, however, to make sufficient allegations against the
two named Defendants: Warden Gregory McLaughlin or Deputy Warden Talisha Moody.
A prisoner cannot state a claim based upon a theory of respondent superior or vicarious
liability under § 1983. Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004) (quoting
Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)), vacated on other grounds, 449
F.3d 1149 (11th Cir. 2006). To state a claim against a supervisory official, a prisoner
must allege facts showing either that the supervisor personally participated in the alleged
constitutional violation or that there is a causal connection between the actions of the
supervising official and the alleged constitutional deprivation. H.C. by Hewett v. Jarrard,
786 F.2d 1080, 1086-87 (11th Cir. 1986).
Plaintiff’s Complaint does not include any such allegation or connection. The
Complaint only alleges that the warden denied Plaintiff’s grievance and that the deputy
warden is lazy and does not do her job. The denial of a grievance, standing alone, is
insufficient to establish personal participation in an alleged constitutional violation. See
Larson v. Meek, 240 F. App’x 777, 780 (10th Cir. 2007); see also, Baker v. Rexroad, 159
F. App’x 61, 62 (11th Cir. 2005) (per curium). Plaintiff’s vague and conclusory allegation

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that Defendant Moody failed “to do her job” likewise fails to establish her involvement in
any constitutional violation. Plaintiff’s Complaint thus fails to state a cognizable claim for
relief under §1983. See Twombly, 550 U.S. at 555-56.
Even if Plaintiff had made sufficient allegations against the named defendants, so
as to demonstrate a “deliberate indifference” to his medical needs, Plaintiff’s claims would
still fail. As Plaintiff was previously advised, to state a claim for inadequate medical care
under the Eighth Amendment, a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to a serious medical need. Estelle v. Gamble,
429 U.S. 97, 106 (1976). An “objectively serious medical need” is one that, if left
unattended, poses a substantial risk of serious harm. Taylor v. Adams, 221 F.3d 1254,
1257 (11th Cir. 2000). A medical need is serious if it has been diagnosed by a doctor as
mandating treatment or is so obvious that even a layperson would easily recognize the
necessity for medical attention. Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187
(11th Cir. 1994), overruled in part on other grounds, Hope v. Peltzer, 536 U.S. 730, 739
(2002). Plaintiff’s Complaint does not provide sufficient information for the Court to
determine whether his injury may be considered a “serious medical need” under § 1983.
For these reasons, the Court finds that Plaintiff’s Complaint fails to state a claim
upon which relief may be granted. The Complaint is accordingly DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915A(b)(1). Because this dismissal is without
prejudice,1 Plaintiff is free to file another complaint against these or other defendants
once he has sufficient time to form his claims. However, Plaintiff is advised that, in
1

“When a pro se plaintiff fails to state a claim and a more carefully drafted complaint might state a claim,
dismissal should be without prejudice.” Washington v. Wigington, No. 1:12–CV–0637–WSD–JFK, 2012 WL
3834844 (N.D. Ga. July 27, 2012); see also Quinlan v. Pers. Transp. Servs. Co., 329 F. App'x 246, 249
(11th Cir. 2009) (“[W]e never have stated that a district court sua sponte must allow a plaintiff an opportunity
to amend where it dismisses a complaint without prejudice.”(emphasis in original)).

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Georgia, §1983 claims have a two year statute of limitations. See Owens v. Okure, 488
U.S. 235, 236, 109 S.Ct. 573, 574, 102 L.Ed.2d 594 (1989), (citing Wilson v. Garcia, 471
U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)); O.C.G.A. § 9-3-33 (1982). Thus,
Plaintiff has only two years from the date of the events giving rise to his claims (which is
alleged in this Complaint to have been January 4, 2013) to re-file his complaint.
As noted above, Plaintiff was previously granted leave to proceed without
pre-payment of the filing fee. The dismissal of this Complaint does not relieve Plaintiff of
his obligation to pay the fee; he is still obligated to eventually pay the full $350.00 filing
fee, using the installment payment plan described in 28 U.S.C. § 1915(b).
For this reason, it is hereby ORDERED that Plaintiff be required to make monthly
payments of 20% of the deposits made to his prisoner account during the preceding
month toward the full filing fee. The agency having custody of Plaintiff is DIRECTED
forward said payments from Plaintiff’s account to the Clerk of the Court each time the
amount in the account exceeds $10.00 until the entire filing fee is paid. See 28 U.S.C.
§ 1915(b)(2). Filing fees paid are not refundable, regardless of the outcome of Plaintiff’s
case. It is thus further ORDERED that collection of monthly payments from Plaintiff's
trust fund account continue until the entire $350.00 has been collected, notwithstanding
the dismissal of this lawsuit or the granting of judgment against him prior to the collection
of the full filing fee. In the event Plaintiff is 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 until it has been paid in full. If Plaintiff is released from custody and fails to remit
payments, collection of any balance due is authorized by any means permitted by law.

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The Clerk of Court is accordingly DIRECTED to send a copy of this Order to the
warden and/or business manager of the institution in which Plaintiff is presently confined.
SO ORDERED, this 2nd day of August 2013.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

jlr

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