WATSON v. JOHNSON et al

Filing 40

REPORT AND RECOMMENDATION re 16 MOTION to Dismiss Complaint filed by RICKY MYRICK, JOSEPH PEAL, GEORGE IVEY, GLEN JOHNSON, 21 MOTION to Grant Injunctive Relief filed by RICO DAVID WATSON. ORDER denying 25 MOTION to Grant Section 1983 Relief filed by RICO DAVID WATSON, 34 MOTION to Appoint Counsel filed by RICO DAVID WATSON, 30 MOTION for Reconsideration filed by RICO DAVID WATSON, 17 MOTION to Grant Meritous Complaint re 1 Complaint filed by RICO DAVID WATSON, 10 MOTION for Evidentiary Hearing filed by RICO DAVID WATSON, 38 MOTION for Court to Provide Plaintiff With the Name and Address of an Attorney Who May Represent His Case Pro Bono filed by RICO DAVID WATSON, 31 AMENDED MOTION Amending 24 MOT ION to Appoint Counsel filed by RICO DAVID WATSON, 24 MOTION to Appoint Counsel filed by RICO DAVID WATSON, 35 MOTION to Grant Equitable Relief filed by RICO DAVID WATSON, 23 MOTION for Equitable Relief filed by RICO DAVID WATSON, 37 MOTION to Grant Redress filed by RICO DAVID WATSON. It is recommended that Defendants' motion be granted and Plaintiff's claims dismissed. Ordered by US Magistrate Judge STEPHEN HYLES on 8-12-14. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RICO DAVID WATSON,
Plaintiff,
v.
GLEN JOHNSON, et al.,
Defendants.

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CASE NO: 5:13-CV-303-MTT-MSH
42 U.S.C. § 1983

REPORT AND RECOMMENDATION
Presently pending before the Court are Defendants’ motion to dismiss the complaint
(ECF No. 16), as well as Plaintiff’s numerous miscellaneous filings (ECF Nos. 10, 17, 21,
23, 24, 25, 30, 31, 34, 35, 37, 38).1 For the reasons explained below, it is recommended
that Defendants’ motion to dismiss be granted, and Plaintiff’s motions be denied.
BACKGROUND
Plaintiff, an inmate at Coffee Correctional Facility in Nicholls, Georgia, brought the
above-styled action asserting that the Defendants failed to protect him and denied him
adequate medical care with respect to an attack made upon Plaintiff while he was
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Several documents have been docketed as motions, but not all truly fit that description.
The following are pending motions which will be considered herein: a motion for evidentiary
hearing (ECF No. 10); a “motion to grant injunctive relief” (ECF No. 21); four motions to appoint
counsel (ECF Nos. 24, 31, 34, 38); and a “Motion for Reconsideration” (ECF No. 30). The
following documents were docketed as motions, but are more properly described as responses or
briefs and are not treated as motions: a “Motion to Grant” (ECF No. 17); a “Request for Equitable
Relief” (ECF No. 23); a “Motion to Grant Section 1983 Relief” (ECF No. 25); a “Motion to Grant
Equitable Relief” (ECF No. 35); and a “Motion to Grant Redress” (ECF No. 37). To the extent
any of these documents present issues for consideration by the Court, the Court’s decision to
recommend granting Defendants’ motion to dismiss renders these “motions” moot, and they are
denied as such.

incarcerated at Hancock State Prison (“HSP”).

(Compl. 5-6, ECF No. 1.)

On

preliminary review, the Court construed Plaintiff’s claims as asserting violations of his
Eighth Amendment right to be free from cruel and unusual punishment as they potentially
stated claims of deliberate indifference to a risk of serious harm to Plaintiff and inadequate
provision of medical care. (See Order, October 3, 2013, ECF No. 7.)
Defendants filed a motion to dismiss the complaint for failure to state a claim.
(ECF No. 16.) Plaintiff responded to the motion on December 23, 2013 in a document
filed as “Motion to Grant,” which the Court construes as his response to the motion to
dismiss.

(ECF No. 17.) 2

Defendants replied (ECF No. 18) 3 , and Plaintiff again

responded (ECF No. 19). Defendants’ motion is therefore ripe for review.
DISCUSSION
I.

Motion to Dismiss
Defendants contend that Plaintiff’s Complaint fails to state a claim upon which

relief can be granted. (Defs.’ Br. in Supp. of Mot. to Dismiss 3-15, ECF No. 16-1.)
Defendants argue that even accepting all of Plaintiff’s facts as true, he has not shown a
violation of the Eighth Amendment sufficient to warrant relief under 42 U.S.C. § 1983.
The Court agrees and therefore recommends Defendant’s motion be granted.
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.

2
3

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

Hereinafter “Pl.’s Resp.”
Hereinafter “Defs.’ Reply.”

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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
F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).
In his Complaint, Plaintiff makes two separate claims. The first claim is based
upon his placement in the dorm in which the alleged attack took place and allegations that
such placement subjected Plaintiff to a substantial risk of harm. (Compl. 7.) The second
claim is based upon the treatment Plaintiff received for his injuries after he returned to the
prison from the hospital.

(Compl. 8.)

Both claims should be dismissed, however,

because Plaintiff has brought his claims against these Defendants without alleging in the
Complaint any specific acts personally committed by them.4 As a theory of vicarious or

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Plaintiff has also sued Ricky Myrick, an employee of the Georgia Department of
Corrections. Defendant Myrick is not, however, listed in Plaintiff’s claims for relief, and is only
mentioned in the Complaint as having denied a disciplinary appeal stemming from the attack.
(Compl. 6.) This is insufficient to create a cause of action against Defendant Myrick under 42
U.S.C. § 1983, and therefore his motion should be granted.
Even when the Court considers the allegations raised in Plaintiff’s responsive briefs to the

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supervisory liability is the only conceivable claim Plaintiff alleged in his original
Complaint, and since such a theory of liability is insufficient to state a claim under 42
U.S.C. § 1983, his claims must be dismissed. However, in his responsive briefs to the
motion, Plaintiff expands upon the facts contained in his Complaint. Although Plaintiff
has not sought leave to amend his Complaint, the Court will also consider the allegations
contained in his responses as though included in his Complaint and address Defendants’
motion accordingly.
A.

Failure to Protect Claim

Plaintiff alleges that Defendants violated his Eighth Amendment right against cruel
and unusual punishment. It is well settled that prison officials have “a duty . . . to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S.
825, 833 (1994). Although not every injury inflicted by another inmate results from a
violation of the Constitution, the Eighth Amendment is violated if a prisoner is seriously
injured as a result of a “prison official’s ‘deliberate indifference’ to a substantial risk of
serious harm.”

Id. at 828, 834.

This requires a showing that the official was

“subjectively aware” of and nonetheless disregarded an excessive risk to the inmate's
safety. See id.
motion to dismiss, Defendant Myrick’s motion should be granted. Plaintiff only alleges that
Defendant Myrick was aware of the assault and “failed to conduct a thorough investigation.”
(Pl.’s Resp. 3, ECF No. 17.) Even if these facts are taken as true, Plaintiff has not alleged grounds
for relief under § 1983 against Defendant Myrick. A state prisoner has no constitutional right to
participate in prison grievance procedures. See Wildberger v. Bracknell, 869 F.2d 1467, 1467-68
(11th Cir. 1989). See also, Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994) (“the Constitution
creates no entitlement to grievance procedures or access to any such procedure voluntarily
established by a state”); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988) (“[t]here is no
legitimate claim of entitlement to a grievance procedure”). Furthermore, a general allegation that
a proper investigation was not conducted does not show a violation of the Constitution.

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Furthermore, the Eleventh Circuit has held that “supervisory officials are not liable
under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat
superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)
(citation omitted).

“Instead, supervisory liability under § 1983 occurs either when the

supervisor personally participates in the alleged unconstitutional conduct or when there is a
causal connection between the actions of a supervising official and the alleged
constitutional deprivation.” Id. (citation omitted).
In his first claim, Plaintiff alleges that he was placed in dormitory F-2 on October
26, 2012 and assigned to cell 126. (Id. at 5.) Cell 126, however, was already occupied,
so he was instructed “by the floor officer” to go to cell 138. (Id.)5 Eighteen days later,
Plaintiff was approached in cell 138 by two inmates with sharp objects made into knives.
(Id.) They demanded that Plaintiff leave the dormitory and Plaintiff refused, so they then
attacked him with the weapons, stabbing him in the back of his head multiple times. (Id.)
Plaintiff was able to wrestle one of the knives away from an attacker and escape the cell,
and he thereafter approached one of the guards on duty and was escorted to medical. (Id.)
With respect to his first claim, Plaintiff argues that Defendant Johnson violated his
constitutional rights by “misrepresenting the fact that each and every inmate is secure in his
assigned cell,” and Defendant Ivey violated his constitutional rights by “intentionally
neglecting to uphold his oath of assuring that inmates remain secure in their assigned
dormitory and cell.” (Compl. at 7.) Notably, other than in his claims for relief section,

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Plaintiff does not allege in his original Complaint that any of the individual Defendants
personally ordered his placement or even knew about that placement.

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Plaintiff’s Complaint mentions Defendant Johnson only in reference to his alleged failure
to respond to Plaintiff’s grievance appeal (Id. at 6), and mentions Defendant Ivey only in
noting that he was “contacted . . . to observe [Plaintiff’s] condition” after Plaintiff’s return
from the hospital (Id. at 5). Neither of these tenuous connections to Plaintiff’s claims are
grounds for relief under § 1983.
Simply put, Plaintiff’s Complaint is devoid of any allegation against the Defendants
which would constitute the type of personal participation that the Eleventh Circuit requires
for a supervisor to be held liable in a § 1983 action. Without any such allegation, Plaintiff
has failed to state a claim against Defendants for constitutional violations, and the motion
should be granted. However, as stated above, Plaintiff’s responses to the motion contain
additional allegations that the Court now considers as though contained in the initial
Complaint.
In response to the motion to dismiss, Plaintiff alleges that Defendant Johnson knew
he had previously been in a fight with a member of the “Blood’s” gang, and knew that the
F-2 Dormitory housed around twenty members of that gang, and still “approved” of
Plaintiff’s assignment in the dormitory even though Plaintiff is not gang-affiliated. (Pl.’s
Resp. 2.) He further alleges that Defendant Ivey violated his rights by failing to conduct a
random “shakedown” of the dormitory prior to the assault. (Id.) Had this shakedown
occurred, Plaintiff alleges his injuries would have been prevented.
Even taking Plaintiff’s later allegations into consideration, he has failed to state a
claim for § 1983 relief. To show deliberate indifference to safety, a Plaintiff must first
show that “a condition of his confinement poses an unreasonable risk of serious damage to

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his [] health or safety.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004).
Plaintiff’s only allegation to fulfill this prong is that there were a number of members of a
particular gang in that dormitory and that Plaintiff is not a member of that gang. This is
not sufficient to establish the type of “extreme” condition required by the test. Id.
Something more specific is required than the general potential for gang-related violence.
Likewise, Plaintiff’s allegation that Defendant Ivey should have conducted a
random “shakedown” of the dormitory is insufficient to state a claim. A Plaintiff may not
make out a claim for deliberate indifference based upon the fact that an incident occurred
and allegations that some type of preventative measure may have potentially prevented the
incident. The courts “will not allow the advantage of hindsight to determine whether
conditions of confinement amounted to ‘cruel and unusual’ punishment.” Purcell ex rel.
Estate of Morgan v. Toombs Cnty, Ga., 400 F.3d 1313 (11th Cir. 2005). Consequently,
Defendants’ motion to dismiss should be granted as to Plaintiff’s failure to protect claims.
B.

Inadequate Medical Treatment Claim

In his second claim, Plaintiff alleges that he did not receive proper care and
adequate treatment of his injuries after his return from the hospital. (Id. at 8.) Plaintiff
claims that following his hospital treatment he returned to HSP on November 13, 2012
with a number of stitches, staples, and bandages. (Id. at 6.) He states that he received
medicine on the 13th and 14th, but was “deprived of medical attention” from the 15th to
the 18th. (Id.) Plaintiff then alleges that he informed the medical staff that he was in
need of new bandages on the 19th, but that they were not changed until the 21st. (Id.)
Finally, he states that he asked a nurse on November 24th when his stitches and staples

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would be removed, to which the nurse replied that they “don’t do that kind of stuff on
holidays.” He then states that the stitches and staples were removed on November 27th,
“14 days pass[ed] the due date.” (Id.) This sequence of events, according to Plaintiff,
amounts to a failure to “assure that Plaintiff receive[d] proper care and adequate treatment,
including medical attention.” (Id. at 8.)
An Eighth Amendment claim for inadequate medical care requires a showing of acts
or omissions sufficiently harmful to establish deliberate indifference to a serious medical
need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A deliberate indifference claim
contains both an objective and subjective component. Hill v. DeKalb Reg’l Youth Det.
Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994), overruled in part on other grounds by Hope v.
Peltzer, 536 U.S. 730, 739 (2002). Under the first component, a prisoner must set forth
evidence of an “objectively serious medical” need 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 a doctor’s
attention. Hill, 40 F.3d at 1187.
Once an objectively serious medical need is shown, the deliberate indifference
component requires that “the response made by public officials to that need was poor
enough to constitute an unnecessary and wanton infliction of pain, and not merely
accidental inadequacy, negligence in diagnosis or treatment, or even medical malpractice
actionable under state law.” Taylor, 221 F.3d at 1257 (internal punctuation omitted).
“Medical treatment violates the Eighth Amendment only when it is ‘so grossly

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incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.’ Mere incidents of negligence or malpractice do not rise to the level
of constitutional violations.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)
(internal citations omitted).
Again, Plaintiff has not alleged any specific actions that Defendants personally took
which amount to a constitutional violation. Plaintiff’s relief section in his Complaint
seeks compensation from Defendant Peal “for refusing to assure that Plaintiff receive[d]
proper care and adequate treatment,” (Compl. 8) but Plaintiff only mentions Defendant
Peal where he states that Defendant Peal denied his grievance (Id. at 6). This, by itself, is
insufficient to state a claim against Defendant Peal for inadequate medical care. Plaintiff
does not allege that Defendant Peal knew about Plaintiff’s injuries or his attempts to seek
care, or that Defendant Peal had any ability to provide Plaintiff with the care he desired.
Defendants’ motion should thus also be granted on this claim.
Furthermore, Plaintiff has not established that he was harmed in any way by the
allegedly inadequate care he received. Plaintiff does not point to any medical issues
caused or exacerbated by the care he received. He only states that he was bleeding
through his bandages. (Pl.’s Resp. 2.) Plaintiff also argues that the removal of his
stitches and staples was two weeks passed the due date, but his own timeline shows that
they were removed exactly two weeks after the staples and stitches were applied to
Plaintiff’s injuries.

The Court finds that Plaintiff has not established any harm.

“[C]ompensatory damages under § 1983 may be awarded only based on actual injuries
caused by the defendant and cannot be presumed or based on the abstract value of the

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constitutional rights that the defendant violated.” Slicker v. Jackson, 215 F.3d 1225, 1229
(11th Cir. 2000) (emphasis in original).
For all the reasons stated above, Defendants’ motion to dismiss (ECF No. 16)
should be granted and Plaintiff’s claims dismissed.
II.

Plaintiff’s Miscellaneous Motions
A.

Motion for an Evidentiary Hearing

Plaintiff has moved for an evidentiary hearing. (ECF No. 10.) Because the Court
finds herein that Plaintiff’s complaint fails to state a claim upon which relief can be
granted, there is no need to hear testimony or take evidence. Plaintiff’s motion is denied.
B.

Plaintiff’s “Motion to Grant Injunctive § 1983 Relief”

On January 24, 2014, Plaintiff filed a motion (ECF No. 21) docketed as a “Motion
to Grant Injunctive Relief.” That filing is similar to Plaintiff’s other filings that the Court
has treated herein as briefs rather than motions, but because Plaintiff ostensibly seeks
injunctive relief the Court will consider it as a motion for a preliminary injunction. A
preliminary injunction 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). Because the Court finds that Plaintiff’s claims should be

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dismissed, he cannot meet the requirement of substantial likelihood of success on the
merits. Therefore, it is recommended that Plaintiff’s motion be denied.
C.

Plaintiff’s Motions to Appoint Counsel

Plaintiff has filed four documents seeking appointment of counsel. (ECF Nos. 24,
31, 34, 38.)

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 “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. Accordingly, Plaintiff’s motions for appointment of counsel are denied.6
D.

Plaintiff’s Motion for Reconsideration

Plaintiff has also filed a motion for reconsideration. (ECF No. 31.) Plaintiff’s
motion, however, does not specify what decision of the Court that Plaintiff wants
reconsidered. The motion merely states that Plaintiff attempted to obtain a medical

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Plaintiff’s fourth motion regarding appointment of counsel asks the Court to provide
Plaintiff with the name and address of an attorney who may assist Plaintiff in his case on a pro
bono basis. (ECF No. 38.) Because the Court finds that Plaintiff is not entitled to appointed
representation, it is the Plaintiff’s responsibility to find his own attorney.

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record. (Pl.’s Mot. for Recons. 1.) The Court presumes that Plaintiff is referring to the
“Notice of Authorization of Release of Information” (ECF No. 26) which Plaintiff filed on
February 21, 2014, and which appears to be a handwritten release form authorizing the
release of Plaintiff’s medical record to the U.S. District Court. The Court did not receive
any medical records or seek to obtain any medical records in this case because the Court
does not engage in such evidence-gathering but instead relies on the parties to submit
evidence to the Court. Therefore no decision was made regarding the notice filed by
Plaintiff and there is nothing to reconsider. Plaintiff’s motion is denied.
CONCLUSION
WHEREFORE, for the reasons explained above, it is RECOMMENDED that
Defendants’ motion to dismiss the complaint (ECF No. 16) be GRANTED. It is further
RECOMMENDED that Plaintiff’s motion for injunctive relief (ECF No. 21) 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. Furthermore, Plaintiff’s other miscellaneous motions (ECF Nos. 10,
17, 23, 24, 25, 30, 31, 34, 35, 37, 38) are DENIED.
SO RECOMMENDED, this 12th day of August, 2014.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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