ROBERTS v. GRAMIAK et al
Filing
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ORDER dismissing Plaintiff's complaint. Ordered by U.S. District Judge C ASHLEY ROYAL on 9/18/14. (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BRIAN KEITH ROBERTS, a/k/a
JOHN GILBERT,
:
:
:
Plaintiff,
:
:
VS.
: CASE NO. 5:14‐CV‐248‐CAR‐MSH
:
TOM GRAMIAK, WALTER BERRY,
:
MABLE CHANEY, KENNETH McCLAIN,
:
42 U.S.C. § 1983
SGT. D. TEMPLE, and JASON WILLIAMSON, :
:
Defendants.
:
_________________________________
ORDER
Pro se Plaintiff Brian Keith Roberts has filed a civil rights complaint pursuant to
42 U.S.C. § 1983, while confined at Dooly State Prison in Unadilla, Georgia. (Doc. 1.)
Plaintiff’s Motion to Proceed in forma pauperis was previously granted and he was
ordered to file a recast complaint. Plaintiff filed said complaint on August 20, 2014, and
his claims are now ready for preliminary review.
DISCUSSION
I.
Standard of Review
Because Plaintiff is a prisoner “seeking redress from a governmental entity or
[an] officer or employee of a governmental entity,” this Court is required to conduct a
preliminary screening of his Complaint. See 28 U.S.C. § 1915A(a). In so doing, 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). Even so, a district court must dismiss a prisoner complaint after the initial
review if: (1) it is “frivolous, malicious, or fails to state a claim upon which relief may be
granted”; or (2) it “seeks monetary relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B) (requiring the same of
pleadings filed by parties proceeding in forma pauperis).
A claim is frivolous when it appears from the face of the complaint that the
factual allegations are “clearly baseless” or that the legal theories are “indisputably
meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint is thus
properly dismissed by the district court sua sponte if it is found to be “without arguable
merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
When determining whether a complaint fails to state a claim, 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. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (“The standards governing dismissal
under Rule 12(b)(6) apply to § 1915(e)(2)(b)(ii).”). “[A] complaint must contain
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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, a complaint should not be dismissed
“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).
To state a claim for relief under § 1983, a plaintiff must allege that: (1) an act or
omission deprived him of a right, privilege, or immunity secured by the Constitution or
a statute of the United States; and (2) the act or omission was committed by a person
acting under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1581 (11th Cir.
1995). If a litigant cannot satisfy these requirements, or fails to provide factual
allegations in support of his claim or claims, the complaint is subject to dismissal. See
Chappell v. Rich, 340 F.3d 1279, 1282‐84 (11th Cir. 2003) (affirming court’s dismissal of a §
1983 complaint because the factual allegations were insufficient to support alleged
constitutional violation); see also 28 U.S.C. § 1915A(b) (dictating that a complaint, or any
portion thereof, that does not pass the standard in § 1915A “shall” be dismissed on
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preliminary review).
II.
Statement of Claims
In his Complaint, Plaintiff sues Dooly State Prison employees Warden Tom
Gramiak, Deputy Warden Walter Berry, Deputy Warden Mable Chaney, Unit Manager
Kenneth McClain, and CERT Team1 Sergeant D. Temple, as well as inmate Jason
Williamson. (Compl. p. 1; Doc. 1.) Specifically, Plaintiff’s complaint contends that on
or about April 3, 2014, he awoke in his bunk to find fellow inmate Jason Williamson
standing over him masturbating. Plaintiff states that he notified the dorm officer and
asked to use the phone to call “PREA,”2 but was denied. On April 5, 2014, Plaintiff
again asked to use the phone to call “PREA” but was told the phone was broken.
Plaintiff states that he then wrote to Warden Gramiak, Deputy Warden Berry, and
Deputy Warden Chaney “advising them of the problem” but did not receive a response.
Plaintiff alleges he also spoke with the “Inspection Team” every time they came into the
“J‐1” dorm but the problem was only acknowledged after he filed a grievance.
1
The CERT Team is the Correctional Emergency Response Team which is made up of POST
certified correctional officers who mobilize upon command at Georgia State Prisons to restore
law and order within the facilities and assist all departmental staff with daily organizations and
operations of the facilities. See www.dcor.state.ga.us
2 Plaintiff does not explain what the term “PREA” means but the Court assumes that Plaintiff is
referring to the Prison Rape Elimination Act which was enacted to “provide for the analysis of
the incidence and effects of prison rape in Federal, State, and local institutions and to provide
information, resources, recommendations and funding to protect individuals from prison rape.”
See Prison Rape Elimination Act of 2003, 42 U.S.C. § 15601 et seq.
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Plaintiff then claims that on April 30, 3014, he was assaulted by Sergeant Temple
and other members of the CERT Team. Plaintiff contends he was dragged out of his
bed wherein he hit his face and head on the cement floor causing his lip and head to be
“bust[ed].” Plaintiff asserts he was dragged out of the cell by Sergeant Temple with his
hands cuffed behind him and made to lie that way on the cold floor. Plaintiff alleges he
was denied all requests to receive medical attention for his injuries.
On May 9, 2014, Plaintiff alleges he was physically assaulted by inmate Jason
Williamson while Officer Richardson, who is not named as a Defendant in this case,
held Plaintiff’s handcuffed hands behind his back and watched. Plaintiff states he had
continually been writing to Defendants Gramiak, Berry, Chaney, and McClain about his
problems with inmate Jason Williamson and was physically assaulted “as a result.”
On June 9, 2014, Plaintiff alleges he was sprayed with pepper spray “at the
direction of Sergeant Temple” for stating that his life would be in grave danger if the
CERT team forcibly housed him with a known Muslim who had been paid to assault
Plaintiff. Plaintiff again alleges he was denied any and all requests to receive medical
attention. As a result, Plaintiff alleges he “has suffered irreparable physical and
emotional harm.” Plaintiff also alleges, without further elaboration, that he has a severe
asthma problem.
Plaintiff later contends that back on April 21, 2014, he wrote a sworn statement to
Tom Gramiak, Walter Berry, and Kenneth McClain, wherein he was immediately
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locked in J‐1 segregation and issued a “False Disciplinary Report.” Plaintiff states he
continues to be housed in J‐1 to “cover up their Tottal (sic) Disreguard (sic) and abusive
Authority for Plaintiff’s Life & wellbeing.” Plaintiff alleges that the Defendants have
knowingly and willingly “Forced Housed” him with known gang members with the
knowledge that there is a “Hit/Price” on his life. Plaintiff also states that he is housed
in the J‐1 Segregation Dorm to keep him from utilizing the law library. Plaintiff alleges
he has been denied medical attention and continuously harassed, assaulted, and
threatened by staff, administration, and prisoners. Plaintiff alleges the violation of his
constitutional rights started the day he arrived at Dooly State Prison when Sergeant
Temple told Deputy Warden Berry that “This Is Roberts the High Ranking Aryan we
were told was Coming.”
Plaintiff seeks punitive damages in the amount of $20,000 from each Defendant;
declaratory judgment in the form of $20,000 from each Defendant; actual damages in an
amount that the Court deems appropriate; a restraining order to be issued against each
Defendant; and an Order transferring Plaintiff to any prison except Wilcox State Prison.
Plaintiff also seeks an order allowing him to have a warrant taken against inmate Jason
Williamson for assault.
III.
Analysis
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), “the court shall dismiss the case at any
time if the court determines that . . . the action or appeal – is frivolous or malicious.” In
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Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998), abrogated on other grounds by Jones v.
Bock, 549 U.S. 199 (2007), the Eleventh Circuit found that a case dismissed for abuse of
the judicial process, “is precisely the type of strike [based on frivolousness or
maliciousness] that Congress envisioned when drafting section 1915(g).” The Court’s
discretion to dismiss a case without prejudice pursuant to 1915(e)(2)(B)(i) has been
exerted and upheld on multiple occasions. See e.g. Schmidt v. Navarro, ‐‐ F. App’x ‐‐, 2014
WL 3906465 (11th Cir. Aug. 12, 2014) (finding it was not an abuse of discretion by the
District Court to dismiss § 1983 claim for abuse of the judicial process); Redmon v. Lake
Cnty. Sheriff’s Office, 414 F. App’x 221, 225‐26 (11th Cir. 2011) (affirming the dismissal of
a claim where prisoner abused the judicial process by misrepresenting his litigation
history); Shelton v. Rohrs, 406 F. App’x 340, (11th Cir. 2010) (affirming the dismissal of
suit without prejudice pursuant to 1915(e)(2)(B)(i) based on plaintiff’s failure to disclose
prior litigation); Young v. Sec’y. Florida for Dep’t. of Corrections, 380 F. App’x 939 (11th
Cir. 2010) (affirming the dismissal of civil rights case pursuant to 1915(e)(2)(B)(i) based
on plaintiff’s failure to disclose prior litigation).
In this case, even were the Court to find that Plaintiff has alleged colorable claims
of constitutional violations, his case must be dismissed for abuse of the judicial process.
Specifically, Plaintiff, who signed a court‐provided complaint under penalty of perjury,
answered “No” on the complaint when he was asked if he had “begun other lawsuits in
state or federal court dealing with the same facts involved in this action or otherwise
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relating to your imprisonment.” (Compl. p. 1) (emphasis added). “A district court may
impose sanctions if a party knowingly files a pleading that contains false contentions.”
Redmon, 414 F. App’x at 225 (citing Fed. R. Civ. P. 11(c).) “[T]he court must make a
finding of bad faith on the part of the litigant before imposing such sanctions.” In re
Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1304 (11th Cir. 2006). A party engages in bad faith
by “delaying or disrupting the litigation or hampering enforcement of a court order.”
Id. (quotation and citation omitted). Furthermore, “[a]lthough pro se pleadings are held
to a less stringent standard than pleadings drafted by attorneys, a plaintiff’s pro se status
will not excuse mistakes regarding procedural rules.” Redmon, 414 F. App’x at 225‐26.
Plaintiffʹs failure to provide a complete list of his litigation history is found to be
an abuse of process as his attempt to mislead the Court with regard to his litigation
history in this case is egregious and knowing. Since entering the Georgia state prison
system, Plaintiff, using the names “Brian K.Roberts,” and the alias “John Gilbert”3, has
filed more than six previous § 1983 complaints which were ultimately dismissed.4 It is
found that Plaintiff’s use of an alias in filing four of those complaints constitutes an
attempt to mislead the Court. The Court thus finds that Plaintiff’s failure to note the
3
Both Brian K. Roberts and John Gilbert have the same Georgia Department of Corrections prison
identification number of 630789.
See http://www.dcor.state.ga.us/GDC/OffenderQuery/jsp/OffQryRedirector.jsp
4
See Gilbert v. Sanders, et al., 5:96-cv-89-HL (M.D.Ga. Mar. 8, 1996); Gilbert v. Lewis, et al., 7:00-cv92-WDO (M.D.Ga. Jul. 24, 2000); Gilbert v. Jones, et al., 5:01-cv-138- DF (M.D.Ga. Mar. 30, 2001);
Roberts v. Jones, et al., 6:01-cv-49-BAE-JEG (S.D.Ga. Mar. 30, 2001); Roberts v. Mills, 6:06-cv-60WTM-JEG (S.D.Ga. June 6, 2006); Roberts v. Smith, et al., 2:13-cv-242-WCO (N.D.Ga. Oct. 21, 2013).
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previous § 1983 suits he had filed in this Court was done in bad faith. As such, his
complaint must be DISMISSED.
CONCLUSION
Having conducted a preliminary review of Plaintiff’s complaint as required by 29
U.S.C. § 1915, the Court finds that Plaintiff’s complaint and all claims for damages
against the Defendants should be DISMISSED. For purposes of the three strikes
provision of the Prison Litigation Reform Act (PLRA), the Court determines that its
decision in this case is a strike against Plaintiff. See 28 U.S.C. § 1915(g) (Counting as
strikes any action or appeal in federal court “that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief may be granted.”).
SO ORDERED, this 18th day of September, 2014.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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