POWELL v. OWENS et al

Filing 13

REPORT AND RECOMMENDATION re 1 Complaint filed by WILLIAM H POWELL, 8 MOTION for Preliminary Injunction filed by WILLIAM H POWELL (); ORDER finding moot 7 MOTION for Leave to File Supplement to Complaint filed by WILLIAM H POWELL, and 11 MOTION for Court to Order Service filed by WILLIAM H POWELL; ORDER Directing Service. Ordered by US Magistrate Judge STEPHEN HYLES on 5-28-14. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WILLIAM H. POWELL
Plaintiff
vs.
BRIAN OWENS, et. al.,
Defendants
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CIVIL NO. 5:14-CV-0087-MTT-MSH

ORDER & RECOMMENDATION
Plaintiff William H. Powell, a state prisoner currently confined at Ware State Prison
in Waycross, Georgia, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 and
paid an initial partial filing fee as required by 28 U.S.C. § 1915(b). The undersigned has
now conducted a preliminary review of Plaintiff’s Complaint and will permit Plaintiff to go
forward with Eighth Amendment claims against Physician’s Assistant Colette Nash, Nurse
Harris (or Harrison), Nurse Willis, Nurse Worthy, “John Doe #1 black male” and “John
Doe #2 white male.” Plaintiff will also be permitted to go forward with First Amendment
claims against Counselor Bostic, Counselor Hill, and Lieutenant Rawls.
It is RECOMMENDED, however, that all other claims and defendants be
DISMISSED without prejudice and that Plaintiff’s Motion for Preliminary Injunction
(ECF No. 8) be DENIED. Plaintiff’s pending Motion for Leave to File a Supplement
(ECF No. 7) and Motion for the Court to Order Service (ECF No. 11) are deemed MOOT.
The Clerk of Court is DIRECTED to send a copy of this Order to the warden and/or

business manager of facility in which Plaintiff is currently confined.
STANDARD OF REVIEW
When conducting a 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 must be
“liberally construed” by the court. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). However, a pro se prisoner’s pleading is still subject to dismissal prior
to service if the district court finds that the complaint –when viewed liberally and in the
light most favorable to the plaintiff – is frivolous or malicious, seeks relief from an immune
defendant, or otherwise fails to state a claim upon which relief may be granted. See 28
U.S.C. §1915A(b).
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.”). “Threadbare recitals of the elements of
cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v.

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Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To survive
preliminary review, a prisoner’s complaint must “raise the right to relief above the
speculative level” by alleging facts which create “a reasonable expectation” that discovery
will reveal the evidence necessary to prove a claim. See Twombly, 550 U.S. at 555-556.
ANALYSIS OF CLAIMS
This action arises out Plaintiff’s confinement at three different Georgia prisons.
The Complaint alleges that, while confined in Macon State Prison, Plaintiff was assaulted,
violently attacked, and seriously injured by a group of six or more inmates who entered his
cell. This occurred on February 29, 2012. Plaintiff believes that the control officer on
duty at that time, “John Doe #2 white male,” actually opened the door for the inmates to
enter his cell. Plaintiff further asserts that the floor officer on duty, “John Doe #1 black
male,” left his post unattended and returned minutes after the assault began but failed to
protect or assist Plaintiff despite his pleas for help and obvious injuries. By Plaintiff’s
account, the assault and attack lasted as long as fifteen minutes.
After the attack, Plaintiff was provided emergency medical treatment for serious
stab wounds to his face, shoulder, chest, back, and head. When he returned from the
hospital, a physician’s assistant, Defendant Colette Nash, removed Plaintiff’s sutures and
staples. Nash then re-stitched Plaintiff’s injuries despite the fact that she did not have the
proper sutures and failed to scrub her hands or re-sanitize Plaintiff’s wounds. For months
thereafter, P.A. Nash, Nurse Harris (or Harrison), Nurse Willis, and Nurse Worthy
allegedly neglected to properly treat, clean, and dress Plaintiff’s wounds.

Plaintiff

subsequently contracted Hepatitis-B and developed keloids. Plaintiff attempted to file
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grievances about the attack and alleged denial of medical care, but his efforts were
hindered by Counselor Bostic, Counselor Hill, and Lieutenant Rawls.
Two months after the assault, Plaintiff also began having trouble with his vision and
requested medical care. He was seen by the “eye doctor” at Macon State Prison and was
diagnosed with Keratoconus. Plaintiff was provided a contact lens, but lost it shortly
thereafter. Plaintiff then saw the eye doctor again a few weeks later. He ordered Plaintiff
another contact lens and referred him to a specialist. Plaintiff was examined at the August
State Medical Prison in December of 2012 and advised that he would need a corneal
transplant. By that time, however, Plaintiff had been transferred from Macon State Prison
to Smith State Prison. Plaintiff was again transferred in June of 2013 to Ware State
Prison, where he is now confined.
I.

Eighth Amendment Claims against “Colette Nash, Nurse Harris (or Harrison),
Nurse Willis, Nurse Worthy, “John Doe #1 black male” and “John Doe #2 white
male”
Plaintiff’s allegations, when viewed in the light most favorable to Plaintiff, are

sufficient for his Eighth Amendment claims against Colette Nash, Nurse Harris (or
Harrison), Nurse Willis, and Nurse Worthy to go forward. Plaintiff has also stated a
cognizable Eighth Amendment claim against the John Doe defendants. As general rule,
fictitious party pleading is not permitted in federal court. Richardson v. Johnson, 598
F.3d 734, 738 (11th Cir. 2010). However, there is a difference between a claim against
fictitious parties and a claim against real parties sued under a fictitious name. See Dean v.
Barber, 951 F.2d 1210, 1215-16 (11th Cir. 1992). A claim against an unnamed defendant
(or “John Doe”) may proceed when the plaintiff’s description of the defendant is so
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specific that the party may be identified though his actual name is unknown. See id. In
such cases, the allegations in the complaint must make it clear that the plaintiff can uncover
the defendant’s name through discovery. See id; Bowens v. Superintendent of Miami
South Beach Police Dept, No. 13–12372, 2014 WL 631146, at * 3 (11th Cir. Feb. 19,
2014). The undersigned finds that Plaintiff’s descriptions of the officers on duty at the
time of his attack on February 29, 2012 - “floor officer, John Doe #1 black male” and
“control officer, John Doe #2 white male”- are sufficiently clear to allow Plaintiff’s claims
to go forward. With some assistance from the Georgia Department of Corrections, the
names of these parties can likely be uncovered.
II.

Eighth Amendment Claims against Medical Administrator Spikes, Warden
McLaughlin, Warden Moody, and Warden Hinton
Plaintiff has also attempted to bring Eighth Amendment claims against various

supervisory officials. The Complaint alleges that Plaintiff filed a grievance about his
medical treatment, and that his grievance was denied by Medical Administrator Spikes.
Plaintiff also claims to have sent letters to Spikes, Warden McLaughlin, Warden Moody,
and Warden Hinton regarding the denial of adequate healthcare at Macon State Prison.
Even if true, Plaintiff’s allegations do not support an Eighth Amendment claim
against these supervisory officials. “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 has not made any such
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allegations here. The mere fact that a prison official denies a grievance is insufficient to
impose liability under § 1983. See Larson v. Meek, 240 F. App’x. 777, 780 (10th Cir.
2007); Baker v. Rexroad, 159 F. App’x 61, 62 (11th Cir. 2005) (per curium).

A

supervisory official likewise cannot be held liable based solely on his receipt of a letter
about prison conditions. Crowder v. Lash, 687 F.2d 996, 1005-06 (7th Cir. 1982).
It is therefore RECOMMENDED that these claims against Medical Administrator
Spikes, Warden McLaughlin, Warden Moody, and Warden Hinton be DISMISSED.
III.

Eighth Amendment Claims against “Georgia Health Science University”
The Complaint also lists Georgia Health Science University, the medical contractor

for Macon State Prison, as a named defendant. A private contractor operating a prison
service cannot be sued directly under § 1983 unless the alleged constitutional deprivation
occurred as a direct result of the contractor's official policies or customs. See Flakes v.
Donald, 2008 WL 3925177, at * 1 (S.D. Ga., May 15, 2008) (citing Farrow v. West, 320
F.3d 1235, 1239 n. 3 (11th Cir. 2003); Monell v. Dep't of Soc. Servs. 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978); and Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.
1992)); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997). Plaintiff does not allege that
Georgia Health Science University maintained any policy or custom that resulted in the
denial of his constitutional rights. It is thus RECOMMENDED that Plaintiff’s claims
against Georgia Health Science University be DISMISSED.
IV.

Eighth Amendment Claims against “Opthalmologist at Macon State Prison”
Plaintiff has next attempted to bring an Eighth Amendment claim against the

ophthalmologist at Macon State Prison. As stated above, Plaintiff was seen by the “eye
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doctor” at Macon State Prison, was diagnosed with Keratoconus, and provided a contact
lens. Plaintiff saw the eye doctor again weeks later, at which time, the doctor requested
another contact lens and referred Plaintiff to a specialist.
These allegations, even when viewed in Plaintiff’s favor, do not state an Eighth
Amendment claim for inadequate medical care. See Wilson v. Seiter, 501 U.S. 294, 297,
111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); McElligott v. Foley, 182 F.3d 1248, 1255 (11th
Cir. 1999). The Complaint alleges that Plaintiff was examined, correctly diagnosed,
provided treatment, and referred to a specialist; and there is no allegation that the
ophthalmologist caused Plaintiff any injury. It is accordingly RECOMMENDED that
Plaintiff’s claims against the ophthalmologist at Macon State Prison be DISMISSED.
V.

First and Fourteenth Amendment Claims against Warden McLaughlin,
Counselor Bostic, Counselor Hill, and Lieutenant Rawls
Plaintiff also attempts to state due process claim against Warden McLaughlin,

Counselor Bostic, Counselor Hill, and Lieutenant Rawls based upon their alleged
interference with his ability to file grievances. A prisoner has no constitutional right to
participate in prison grievance procedures. See Wildberger v. Bracknell, 869 F.2d 1467,
1467-68 (11th Cir. 1989); Doe v. Moore, 410 F.3d 1337, 1350 (11th Cir. 2005).
Plaintiff’s allegations thus fail to state a due process claim, and it is RECOMMENDED
that these claims against Warden McLaughlin, Counselor Bostic, Counselor Hill, and
Lieutenant Rawls be DISMISSED.
Plaintiff’s allegations, however, may state a First Amendment claim. The First
Amendment plainly prohibits prison officials from retaliating against an inmate for
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exercising his right of free speech, which includes the right to complain about the
conditions of his confinement and to file prison grievances. Farrow v. West, 320 F.3d
1235, 1248 (11th Cir. 2003); Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).
Here, the Complaint alleges that Counselors Bostic and Hill refused to assist and
even hindered Plaintiff’s attempts to file grievances; and when other inmates attempted to
submit grievances on Plaintiff’s behalf, Bostic refused to accept them and advised the
inmates to “stay away from Plaintiff’s cell door.” Lieutenant Rawls, at the direction of
Defendants Bostic and Hill, then posted a sign outside Plaintiff’s door in administrative
segregation (showing his name, picture, and GDC number) which advised counselors and
administrative staff to stay away from Plaintiff’s door. The Complaint further alleges that
Rawls posted the sign because Defendants did not want Plaintiff to file anymore
grievances. As a result, counselors stopped making weekly visits to his cell. The sign
apparently remained outside Plaintiff’s door for a number of weeks and prevented him
from filing timely grievances.
The undersigned finds that these allegations, when viewed in the light most
favorable to Plaintiff, are sufficient to allow Plaintiff’s First Amendment claims against
Defendants Rawls, Bostic and Hill to also go forward.
VI.

Eighth Amendment Failure to Protect Claims against Commissioner Owens,
Warden McLaughlin, Warden Hinton, Warden Moody, Captain Davis,
Lieutenant Eaddie, and Unit Manager Bobbitt
Plaintiff asserts that Commissioner Owens, Warden McLaughlin, Warden Hinton,

Warden Moody, Captain Davis, Lieutenant Eaddie, and Unit Manager Bobbitt have failed
to take reasonable measures to guarantee inmates’ safety at Macon State Prison. Plaintiff
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complains of the “ready availability” of knives and other weaponry, an atmosphere of
violence and terror, and the level control inmates have over the staff.
A prison official may be held liable for an Eighth Amendment violation “when a
substantial risk of serious harm, of which the official is subjectively aware, exists and the
official does not ‘respond[] reasonably to the risk’. . .” Carter v. Galloway, 352 F.3d 1346,
1349 (11th Cir. 2003). Here, however, Plaintiff’s generalized and conclusory allegations
are not sufficient to show that each of these prison officials are subjectively aware of “a
substantial risk of serious harm from inmate violence,” Hale v. Tallapoosa County, 50 F.3d
1579, 1583 (11th Cir. 1995), at Macon State Prison and have failed reasonably respond to
this risk. It is thus RECOMMENDED that these claims against Commissioner Owens,
Warden McLaughlin, Warden Hinton, Warden Moody, Captain Davis, Lieutenant Eaddie,
and Unit Manager Bobbitt be DISMISSED.
VII.

Claims against Defendants at Smith and Ware State Prisons
The remainder of Plaintiff’s Complaint describes events occurring at Smith State

Prison and Ware State Prison. Claims arising at these other prisons may only be joined in
this action if they arise “out of the same transaction, occurrence, or series of transactions or
occurrences.” Fed. R. Civ. P. 20(a)(2). “[A] claim arises out of the same transaction or
occurrence if there is a logical relationship between the claims.” Construction Aggregates,
Ltd. v. Forest Commodities Corp., 147 F.3d 1334, 1337 n.6 (11th Cir. 1998).
Plaintiff’s Complaint fails to show a “logical relationship” between his claims
arising from events at Macon State Prison and those related to his incarceration at Smith or
Ware State Prisons: The claims involve different events, different legal issues, and
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different parties.

Therefore, the claims are not properly joined, and it accordingly

RECOMMENDED that claims arising out of events occurring at Smith State Prison or
Ware State Prison be DISMISSED from this action. See Fed. R. Civ. P. 20. For the same
reason, it is RECOMMENDED that Plaintiff’s Motion for Preliminary Injunction (ECF
No. 8), as it relates to issues at Ware State Prison, also be DENIED; it is not properly
considered in this case. Should Plaintiff wish to pursue a 42 U.S.C. § 1983 action for
claims arising out of these events, he may do so by filing separate civil rights actions in the
United States District Court of the Southern District of Georgia. Plaintiff is advised that
his § 1983 claims have a two year statute of limitations. See Williams v. City of Atlanta,
794 F.2d 624, 626 (11th Cir. 1986).
Plaintiff’s Motion to Supplement (ECF No. 7) his Complaint with allegations
against Warden Glen Johnson at Ware State Prison is now MOOT.
CONCLUSION
After having reviewed Plaintiff’s Complaint, as required by 29 U.S.C. § 1915A(a),
the undersigned will allow Plaintiff to go forward with claims against Colette Nash, Nurse
Harris (or Harrison), Nurse Willis, Nurse Worthy, “John Doe #1 black male,” “John Doe
#2 white male, Counselor Bostic, Counselor Hill, and Lieutenant Rawls. It is therefore
ORDERED that service be made on these defendants and that they file an Answer, or such
other response as may be appropriate under Fed. R. Civ. P. 12, 28 U.S.C. § 1915, and the
Prison Litigation Reform Act.1 Defendants are reminded of the duty to avoid unnecessary
service expenses and of the possible imposition of expenses for failure to waive service
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Plaintiff’s Motion for the Court to Order Service (ECF No. 11) is now MOOT.
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under Rule 4(d). The undersigned further requests that the Attorney General Attorney’s
Office provide assistance, if possible, in identifying the John Doe defendants for service.
It is RECOMMENDED that all other claims and parties addressed in this Order be
DISMISSED, without prejudice, and that Plaintiff’s Motion for Preliminary Injunction be
DENIED. Plaintiff may serve and file written objections to these recommendations with
the district judge to whom this case is assigned within fourteen days after being served a
copy of this Order. 28 U.S.C. § 636(b)(1).
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall keep the Clerk of this Court and
all opposing attorneys and/or parties advised of their current address. Failure to promptly
advise the Clerk of a change of address may result in the dismissal of a party’s pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff is also advised that he must diligently prosecute his Complaint or face the
possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil
Procedure for failure to prosecute.

Defendants are similarly advised that they are

expected to diligently defend all allegations made against them and to file timely
dispositive motions as hereinafter directed. This matter will be set down for trial when the
Court determines that discovery has been completed and that all motions have been
disposed of or the time for filing dispositive motions has passed.
FILING AND SERVICE OF MOTIONS,
PLEADINGS, AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and
correspondence with the Clerk of Court. A party need not serve the opposing party by
mail if the opposing party is represented by counsel.
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In such cases, any motions,

pleadings, or correspondence shall be served electronically at the time of filing with the
Court. If any party is not represented by counsel, however, it is the responsibility of each
opposing party to serve copies of all motions, pleadings, and correspondence upon the
unrepresented party and to attach to said original motions, pleadings, and correspondence
filed with the Clerk of Court a certificate of service indicating who has been served and
where (i.e., what address), when service was made, and how service was accomplished.
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has
been filed on behalf of Defendants from whom discovery is sought by Plaintiff.
Defendants shall not commence discovery until such time as an answer or dispositive
motion has been filed. Once an answer or dispositive motion has been filed, the parties
are authorized to seek discovery from one another as provided in the Federal Rules of Civil
Procedure.

Plaintiff’s deposition may be taken at any time during the time period

hereinafter set out, provided that prior arrangements are made with his custodian.
Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal
of his lawsuit under Rule 37 of the Federal Rules of Civil Procedure.
It is hereby ORDERED that discovery (including depositions and interrogatories)
shall be completed within 90 days of the date of filing of an answer or dispositive motion
by Defendants (whichever comes first) unless an extension is otherwise granted by the
Court upon a showing of good cause therefor or a protective order is sought by Defendants
and granted by the Court. This 90-day period shall run separately as to each Defendant
beginning on the date of filing of each Defendant’s answer or dispositive motion
(whichever comes first). The scheduling of a trial may be advanced upon notification
from the parties that no further discovery is contemplated or that discovery has been
completed prior to the deadline.
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Discovery materials shall not be filed with the Clerk of Court. No party shall be
required to respond to any discovery not directed to him or served upon him by the
opposing counsel/party. The undersigned incorporates herein those parts of the Local
Rules imposing the following limitations on discovery: except with written permission of
the Court first obtained, INTERROGATORIES may not exceed TWENTY-FIVE (25) to
each party, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS under
Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to each
party, and REQUESTS FOR ADMISSIONS under Rule 36 of the Federal Rules of Civil
Procedure may not exceed FIFTEEN (15) requests to each party. No party is required to
respond to any request which exceed these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
Dismissal of this action or requests for judgment will not be considered in the
absence of a separate motion therefor accompanied by a brief/memorandum of law citing
supporting authorities. Dispositive motions should be filed at the earliest time possible,
but in any event no later than thirty (30) days after the close of discovery unless otherwise
directed by the Court.
DIRECTIONS TO CUSTODIAN OF PLAINTIFF
Following the payment of the required initial partial filing fee or the waiving of the
payment of same, the Warden of the institution wherein Plaintiff is incarcerated, or the
Sheriff of any county wherein he is held in custody, and any successor custodians, shall
each month cause to be remitted to the Clerk of this court twenty percent (20%) of the
preceding month’s income credited to Plaintiff’s account at said institution until the
$350.00 filing fee has been paid in full. In accordance with provisions of the Prison
Litigation Reform Act, Plaintiff’s custodian is hereby authorized to forward payments
from the prisoner’s account to the Clerk of Court each month until the filing fee is paid in
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full, provided the amount in the account exceeds $10.00.
IT IS FURTHER ORDERED AND DIRECTED that collection of monthly
payments from Plaintiff’s trust fund account shall continue until the entire $350.00 has
been collected, notwithstanding the dismissal of Plaintiff’s lawsuit or the granting of
judgment against him prior to the collection of the full filing fee.
PLAINTIFF’S OBLIGATION TO PAY FILING FEE
Pursuant to provisions of the Prison Litigation Reform Act, in the event Plaintiff is
hereafter 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 in this proceeding until said
amount has been paid in full; Plaintiff shall continue to remit monthly payments as
required by the Prison Litigation Reform Act. Collection from Plaintiff of any balance
due on the filing fee by any means permitted by law is hereby authorized in the event
Plaintiff is released from custody and fails to remit payments. Plaintiff’s Complaint is
subject to dismissal if he has the ability to make monthly payments and fails to do so.
SO ORDERED, this 28th day of May, 2014.
/s/ Stephen Hyles _____________________________
UNITED STATES MAGISTRATE JUDGE

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