GHOLSTON v. HUMPHREY et al
ORDER ADOPTING 91 Report and Recommendations; GRANTING in part and DENYING in part 26 Motion to Dismiss; GRANTING in part and DENYING in part 56 Motion to Dismiss for Failure to State a Claim; DENYING [60 ] Motion for Sanctions; GRANTING in part and DENYING in part 75 Motion to Dismiss; DENYING 82 Motion for Preliminary Injunction; DENYING 86 Motion for TRO; and DENYING 86 Motion to Appoint Counsel. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 3/9/2015. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Warden CARL HUMPHREY, et al.,
CIVIL ACTION NO. 5:13-CV-444 (MTT)
Before the Court is the Recommendation of United States Magistrate Judge
Charles H. Weigle. (Doc. 91). The Magistrate Judge recommends granting in part and
denying in part the Defendants’ motions to dismiss. (Docs. 26; 56; 75). To the extent
the Plaintiff attempts to sue Defendants Warden Humphrey and Deputy Warden Bishop
in their official capacities for monetary damages, the Magistrate Judge recommends
granting the Defendants’ motions to dismiss. The Magistrate Judge recommends
denying the Defendants’ motions to dismiss the Plaintiff’s failure-to-intervene and
supervisory liability claims.1 It is further recommended that the Defendants’ motion for
sanctions (Doc. 60) and the Plaintiff’s motion for a preliminary injunction (Doc. 82) and
motion for a temporary restraining order (Doc. 86) be denied. The Defendants have
objected to the Recommendation, and the Plaintiff has responded. (Docs. 93; 94).
Pursuant to 28 U.S.C. § 636(b)(1), the Court has considered the Defendants’ objection
As stated in the Recommendation, the Defendants do not move to dismiss the Plaintiff’s excessive force
and has made a de novo determination of the portions of the Recommendation to which
the Defendants object.
In their objection, the Defendants simply “object to the report to the extent that it
rejects their arguments that Plaintiff has failed to state a claim and they are entitled to
qualified immunity from the claims as alleged by Plaintiff.” (Doc. 93 at 4). “Qualified
immunity offers complete protection for individual public officials performing
discretionary functions ‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “‘Once discretionary authority is established, the
burden then shifts to the plaintiff to show that qualified immunity should not apply.’”2
Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012) (quoting Lewis v. City of W.
Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009)). To meet this burden, a plaintiff
must establish that “the officer’s conduct amounted to a constitutional violation” and “the
right violated was ‘clearly established’ at the time of the violation.” Lewis, 561 F.3d at
1291. This two-step analysis may be done in whatever order is deemed most
appropriate for the case. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
The clearly established law must provide a defendant with “fair warning” that his
or her conduct deprived the plaintiff of a constitutional right. Hope v. Pelzer, 536 U.S.
730, 739–41 (2002). A plaintiff “can demonstrate that the contours of the right were
clearly established in several ways.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir.
2012). First, a plaintiff can show that “a materially similar case has already been
decided.” Id. (internal quotation marks and citations omitted). Second, a plaintiff can
There is no dispute the Defendants were acting within their discretionary authority.
point to a “broader, clearly established principle [that] should control the novel facts [of
the] situation.” Id. (internal quotation marks and citation omitted). “Finally, the conduct
involved in the case may ‘so obviously violate[ ] th[e] constitution that prior case law is
unnecessary.’” Id. (citation omitted). Clearly established precedent in this Circuit
means decisions of the United States Supreme Court, the Eleventh Circuit, and the
highest court of the pertinent state. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.
The Court agrees with the Magistrate Judge that the Plaintiff has sufficiently
alleged facts to state a plausible failure-to-intervene claim against Defendants O’Neal,
Cooper, McMillian, Kyles, Jackson, Wesley, Mabry, Johnson, Walters, Clubber, Wilkins,
and Means for the reasons stated in the Recommendation. Because the Plaintiff has
stated a plausible Eighth Amendment violation against these Defendants, the Plaintiff
has met his burden under the first prong of the qualified immunity analysis. As to the
second prong, clearly established law gave these Defendants fair warning that their
failure to intervene while in the presence of other officers using excessive force against
the Plaintiff violated the Plaintiff’s Eighth Amendment rights. See Skrtich v. Thornton,
280 F.3d 1295, 1302 (11th Cir. 2002) (“‘[A]n officer who is present at the scene and who
fails to take reasonable steps to protect the victim of another officer’s use of excessive
force, can be held liable for nonfeasance.’” (quoting Fundiller v. Cooper City, 777 F.2d
1436, 1441-42 (11th Cir. 1985))). Because the Plaintiff has also met his burden under
the second prong, the Defendants are not entitled to qualified immunity as to the failureto-intervene claim.
With regard to the supervisory liability claim, the Court agrees with the Magistrate
Judge that the Plaintiff has sufficiently alleged facts to state a claim against Defendants
Humphrey and Bishop.3 As stated in the Recommendation, a supervisor can only be
held liable if the supervisor participated directly in the unconstitutional conduct or if a
causal connection exists between the supervisor’s actions and the alleged
unconstitutional violations. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
The Eleventh Circuit has stated:
The necessary causal connection can be established when 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. Alternatively, the
causal connection may be established when a 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.
Harrison v. Culliver, 746 F.3d 1288, 1299 (11th Cir. 2014) (quoting Cottone, 326
F.3d at 1360).
Here, the alleged facts, taken as true, support the inference that Humphrey and
Bishop knew at least some of the named Defendants would act unlawfully and failed to
stop them from doing so. Humphrey and Bishop had allegedly received notice of prior
misconduct by at least some of the Defendants toward the Plaintiff from multiple
The Plaintiff alleges the following against Humphrey and Bishop:
Defendants Humphrey and Bishop were made aware of their staff’s misconduct towards
plaintiff various of times personally, by officers who witnessed misconduct toward plaintiff
and through grievances and complaints of other inmates[, and] also the viewing of video
footage of incidents, but they still did not ensure plaintiff would be safe from harm or
physical abuse and even authorized and sent some defendants named in this complaint
to participate in incidents of force resulting in more physical abuse after plaintiff
requested to be protected from those defendants.
(Doc. 1, ¶ 35).
sources, including the Plaintiff himself, reports from other officers, complaints and
grievances by other inmates, and video footage of prior incidents. See Danley v. Allen,
540 F.3d 1298, 1315 (11th Cir. 2008) (holding the supervisors liable because they were
aware of a pattern of the use of excessive force during particular defendants’ shift
through numerous complaints and grievances), overruled in part on other grounds,
Randall v. Scott, 610 F.3d 701 (11th Cir. 2010); Kendall v. Sutherland, 2014 WL
5782533, at *13 (N.D. Ga.) (holding the plaintiff sufficiently alleged the supervisor had
knowledge the subordinate would act unlawfully because the plaintiff alleged the
supervisor was aware of the subordinate’s prior abuse toward the plaintiff through a
prior formal grievance). Then, with the knowledge some Defendants had been the
subject of the Plaintiff’s prior complaints of alleged misconduct, Humphrey and Bishop
allegedly authorized these same Defendants to use force against the Plaintiff, which
allegedly resulted in further “physical abuse.”4 Cf. Cottone, 326 F.3d at 1361 (“The
amended complaint also does not make any allegations that the supervisors had any
knowledge of [the subordinates’] failure to monitor inmates or that [the subordinates]
had any past history, or even one prior incident, of failing to monitor inmates or of
watching computer games.”). Taking these allegations as true and drawing all
reasonable inferences in the Plaintiff’s favor, the Plaintiff has sufficiently alleged a
causal connection between Humphrey’s and Bishop’s conduct and the allegedly
unlawful conduct of their subordinates.
Because the Plaintiff has sufficiently alleged an Eighth Amendment violation
against these Defendants, the Plaintiff has met his burden under the first prong of the
In his response to the Defendants’ motions to dismiss, the Plaintiff mentions that Bishop authorized
force. (Doc. 70 at 1). In his complaint, he alleges that both Humphrey and Bishop authorized force.
(Doc. 1, ¶ 35).
qualified immunity analysis. As to the second prong, clearly established law gave these
Defendants fair warning that their actions violated the Plaintiff’s constitutional rights.
“This Court has long recognized that supervisors are liable for the excessive force … of
their employees where the supervisors received numerous reports of prior misconduct
of that nature by those same employees and did nothing to remedy to the situation.”
Danley, 540 F.3d at 1315. Because the Plaintiff has also met his burden under the
second prong, Humphrey and Bishop are not entitled to qualified immunity as to the
supervisory liability claim.
The Court also agrees with the Magistrate Judge that the Defendants’ motions to
dismiss should be granted in part to the extent the Plaintiff seeks to sue Humphrey and
Bishop, or any other Defendant, in their official capacities for monetary damages. The
Court agrees the Defendants’ motion for sanctions (Doc. 60) and the Plaintiff’s motion
for a preliminary injunction (Doc. 82) and motion for a temporary restraining order (Doc.
86) should be denied for the reasons stated in the Recommendation.
The Plaintiff includes a request for a “temporary lawyer to do [a TRO] for [him]” in
his motion for a temporary restraining order. (Doc. 86). The Court construes this
request as a motion to appoint counsel. Pursuant to 28 U.S.C. § 1915(e)(1), “the court
may request an attorney to represent any person unable to afford counsel.” However,
“[a]ppointment of counsel in a civil case is not a constitutional right.” Wahl v. McIver,
773 F.2d 1169, 1174 (11th Cir. 1985); see also Hunter v. Dep’t of Air Force Agency, 846
F.2d 1314, 1317 (11th Cir. 1988) (stating that decision is within discretion of district
court). Rather, “it is a privilege that is justified only by exceptional circumstances.”
Wahl, 773 F.2d at 1174. In exercising its discretion regarding whether to appoint
counsel for an indigent party, “the district court typically considers, among other factors,
the merits of the plaintiff’s claim and whether the claim is factually or legally so complex
as to warrant the assistance of counsel.” Holt v. Ford, 862 F.2d 850, 853 (11th Cir.
1989). As stated above, the Plaintiff simply requests a “temporary lawyer to do [a
TRO].” Again, the Court agrees the motion for a temporary restraining order should be
denied. Further, the Plaintiff’s claims are neither factually nor legally complex.
Accordingly, to the extent the Plaintiff’s request can be construed as a motion to appoint
counsel, that motion is DENIED.
The Court has reviewed the Recommendation, and the Court accepts the
findings, conclusions, and recommendations of the Magistrate Judge. Thus, the
Recommendation is ADOPTED and made the order of this Court. Accordingly, the
Defendants’ motions to dismiss are GRANTED in part and DENIED in part. (Docs. 26;
56; 75). The Defendants’ motion for sanctions (Doc. 60) and the Plaintiff’s motion for a
preliminary injunction (Doc. 82) and motion for a temporary restraining order (Doc. 86)
SO ORDERED, this 9th day, of March, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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