RICHARDSON v. CONLEY et al
ORDER DENYING 12 Motion to Appoint Counsel and DISMISSING without prejudice Plaintiff's complaint. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/4/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
WALTER C RICHARDSON.
Warden T J CONLEY, et al.,
This case is currently before the Court for preliminary screening as required by the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a). Plaintiff Walter C.
Richardson, an inmate confined at Central State Prison, filed the above-captioned
proceeding seeking relief under 42 U.S.C. § 1983. At the time of filing, Plaintiff also
moved to proceed without prepayment of the district court’s filing fees under 28 U.S.C. §
1915, which was granted on August 25, 2016.
ECF No. 9.
As discussed below,
however, upon preliminary review, Plaintiff’s complaint is dismissed for failure to state a
Motion to Proceed In Form Pauperis
Although Plaintiff is allowed to proceed in forma pauperis in this action, Plaintiff is
still obligated to pay the full balance of the filing fee, in installments, as set for in § 1915(b)
and explained below. It is thus requested that the CLERK forward a copy of this
ORDER to the business manager of the facility in which Plaintiff is incarcerated so that
withdrawals from his account may commence as payment towards the filing fee.
A. Directions to Plaintiff’s Custodian
It is hereby ORDERED 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, 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
full, provided the amount in the account exceeds $10.00. It is further ORDERED 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.
A. Plaintiff’s Obligations Upon Release
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.
Motion to Appoint Counsel
Before addressing the merits of Plaintiff’s claims, the Court must consider
Plaintiff’s request for counsel. “Although plaintiffs in civil cases have no constitutional
right to counsel, district judges may appoint counsel for indigent plaintiffs under 28 U.S.C.
§ 1915(e)(1).” Maldonado v. Unnamed Defendant, 648 F. App’x 939, 956 (11th Cir.
2016) (citing Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)). Appointment is only
appropriate in exceptional circumstances, and “[t]he fact a plaintiff would be helped by the
assistance of an attorney does not, in itself, require appointment of counsel.” Id. (citing
Bass, 170 F.3d at 1320). In deciding whether legal counsel should be provided, the Court
considers, among other factors, the merits of a plaintiff’s claim and the complexity of the
issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989).
In this case, Plaintiff filed a § 1983 complaint on the standard complaint form
designed for pro se litigants. The PLRA requires that the Court now review Plaintiff’s
complaint form to determine whether he can possibly state a viable claim against the
This process is routine in pro se prisoner actions and not an
“exceptional circumstance” justifying the appointment of counsel. The facts and legal
issues involved in this case are fairly straightforward; and the Court has not imposed any
procedural requirements which would limit Plaintiff’s ability to present his case to the
court. See Kilgo v. Ricks, 983 F.2d 189, 193-94 (11th Cir. 1993). Therefore, as the Court
sees no immediate need for the appointment of counsel in this case, Plaintiff’s motion
(ECF No. 12) is DENIED.
Preliminary Review of Plaintiff’s Complaint
A. Standard for Preliminary Review
Under the PLRA, the district courts are obligated to conduct a preliminary screening
of every complaint filed by a prisoner who seeks redress from a government entity, official,
or employee. See 28 U.S.C. § 1915A(a). Screening is also required, under 28 U.S.C. §
1915(e), when the plaintiff is proceeding IFP. Both statutes apply in this case, and the
standard of review is the same. When conducting a preliminary review, the district court
must accept all factual allegations in the complaint as true and make all inferences in the
plaintiff’s favor. See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se
pleadings are also “held to a less stringent standard than pleadings drafted by attorneys,”
and a pro se compliant is thus “liberally construed.” Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998) (per curiam). The district court, however, cannot allow
a plaintiff to litigate frivolous, conclusory, or speculative claims.
As part of the
preliminary screening, the court shall dismiss a complaint, or any part thereof, prior to
service, if it is apparent that the plaintiff’s claims are frivolous or if his allegations fail to
state a claim upon which relief may be granted – i.e., that the plaintiff is not entitled to
relief based on the facts alleged. See § 1915A(b); § 1915(e).
B. Background and Discussion
Plaintiff filed his initial complaint on March 7, 2016. ECF No. 1. The allegations
therein were presented in a series of paragraphs describing the contents of grievances
Plaintiff filed while confined at Washington State Prison. Due to the peculiar manner in
which Plaintiff described the events of which he complains, his initial complaint contained
mostly conclusory descriptions of what he grieved and against whom. Although the
complaint is well organized and fourteen pages in length, Plaintiff failed to provide
detailed factual information concerning relevant events and did not connect defendants’
conduct to the constitutional violations he alleged. In light of these limitations and in
accordance with the leniency afforded pro se litigants, United States Magistrate Judge
Stephen Hyles ordered Plaintiff to recast his complaint on August 25, 2016. ECF No. 9.
Plaintiff was advised that his recast complaint would be substituted for his initial complaint
and that he could not incorporate any portion of his original filing. Id. at 3. Plaintiff was
also instructed to explain (1) what each defendant did (2) when and where each action
occurred; (3) how Plaintiff was injured, and (4) the relief Plaintiff seeks. Id. at 3-4.
Plaintiff filed a recast complaint approximately one month later, and the statement
of claim stated:
Due to the facts, the procedure of the Constitutions rules & Regulations, SOP
IIB05-0001 has been violated. [M]y first amendment will prohibits cruel and
unusual punishment and ect. ect’s; I contends thats a serious crime in
questions or other-wise shocking to the free world; Walter Richardson has
due process rights to a hearing before he may be deprived of liberty interest
on basis of misbehavior. “LOSS, FORFEITURE” (DISCOURTESY)
ECF No. 10 at 5. Plaintiff listed six Defendants as party to this lawsuit, renewed his
request that his grievances be completed immediately, and seeks “pay” for suffering
caused. Plaintiff then filed a statement of jurisdiction and venue (ECF No. 11), a motion
to appoint counsel (ECF No. 12), and discovery materials (ECF No. 13). Plaintiff’s
statement of jurisdiction and venue and motion to appoint counsel contain narrative
descriptions of his claim.
Although the Court will not consider Plaintiff’s initial
complaint as he was advised his recast complaint would be superseding, out of an
abundance of caution, the Court has reviewed the allegations in Plaintiff’s motion to
appoint counsel and statement of jurisdiction as if they were contained in Plaintiff’s recast
To state a claim for relief under Section 1983, a plaintiff much allege that he (1)
“suffered a deprivation of ‘rights, privileges or immunities secured by the Constitution and
laws’ of the United States, and (2) that the act or omission causing the deprivation was
committed by a person acting under color of law.” Wideman v. Shallowford Comm.
Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987) (citations omitted). Although it is not
entirely clear, Plaintiff’s recast complaint and subsequent filings appear to primarily allege
that his rights are being violated because he is receiving inadequate medical care and his
grievances are not being addressed. Plaintiff describes this as “mistreatment” subjecting
to him a “zone-of-danger” amounting to a deprivation of basic human needs, which has
created an “emergency situation.” ECF No. 12. In order for Plaintiff to have a claim
under Section 1983 related to his medical care, however, his claim must rise to the level of
a constitutional violation. A claim cannot do so through bare legal conclusions and
conclusory allegations alone. See Harris v. Goderick, 608 F. App’x 760, 761 (11th Cir.
2015) (per curiam) (“Conclusory allegations and bare legal conclusions are insufficient to
preclude dismissal.”) (citations omitted). Instead, Plaintiff’s “[f]actual allegations must
be enough to raise a right to relief above the speculative level on the assumption that all of
the complaint’s allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545
(2007). Combining all of Plaintiff’s factual allegations, and taking them as true, he has
failed to allege an Eighth Amendment or other constitutional claim.
Plaintiff is not required to adhere to technical niceties, but he is required to “state
with some minimal particularity how overt acts of the defendant caused a legal wrong.”
Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (quoting Pamel Corp. v. P.R.
Highway Auth., 621 F.2d 33, 36 (1st Cir. 1990)). Plaintiff failed to meet this minimal
requirement, despite being given the opportunity to recast his complaint with instructions
how best to do so. Plaintiff’s recast complaint and subsequent filings do not identify what
defendant is responsible for the alleged violations of his rights or otherwise identify any
specific act which may have violated his rights. Plaintiff’s complaint must, therefore, be
dismissed. See Smith v. Reg’l Dir. Of Fla. Dep’t of Corr., 368 F. App’x 9, 14 (11th Cir.
2010) (per curiam) (affirming sua sponte dismissal under 1915 where plaintiff failed to
allege facts showing deliberate indifference).
Even if Plaintiff had alleged facts connecting the actions of defendants to the
complained of harm, he has still failed to state a claim. Plaintiff’s claims related to filing
grievances and the prison staff’s failure to follow prison regulations are subject to
dismissal as they do not raise constitutional violations. See e.g. Bingham v. Thomas, 654
F.3d 1171, 1177 (11th Cir. 2011) (no constitutional entitlement to grievance procedure)
and Jones v. Schofield, No. 1:08-CV-7 (WLS), 2009 WL 902154, at *3(M.D. Ga. Mar. 30,
2009) (prison regulations do not confer rights enforceable under Section 1983).
Plaintiff’s Eighth Amendment medical indifference claim is, likewise, subject to
dismissal for failure to state a claim as Plaintiff has not alleged a serious medical need or
deliberate indifference. “[A] serious medical need is considered ‘one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.’” Farrow v. West, 320
F.3d 1235, 1243 (11th Cir. 2003) (quoting Hill v. Dealk Reg’l Youth Det. Ctr., 40 F.3d
1176, 1187 (11th Cir. 1994)). “In either of these situations, the medical need must be ‘one
that, if left unattended, ‘pos[es] a substantial risk of serious harm.’” Id. (quoting Taylor v.
Adams, 221 F.3d 1254, 1257 (11th Cir. 2000)) (alteration in original).
indifference occurs when “the official knows of and disregards an excessive risk to inmate
health or safety.” Id. (quoting Farmer, 511 U.S. at 837). Plaintiff’s brief references to
delayed medication and his medical safety profile are insufficient to show that Plaintiff is
facing a substantial risk of serious harm. Furthermore, Plaintiff has not alleged facts
establishing that any particular defendant knew of his medical conditions and failed to take
Pursuant to the above, Plaintiff’s complaint1 is DISMISSED without prejudice2
for failure to state a claim.
SO ORDERED, this 4th day of May, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Plaintiff also mentions “retaliation,” “cruel and unusual punishment,” “excessive force,” and
“equal protection” in his filings. Plaintiff, however, has failed to provide factual details sufficient
to support such claims or even make clear that he wishes to raise them.
2 The Court’s best guess is that the alleged violations related to Plaintiff’s deliberate indifference
to medical care claims began occurring in the summer of 2015 and are ongoing. Therefore, it does
not appear that Plaintiff will be barred by Georgia’s statute of limitations if he chooses to file
another complaint, assuming he acts promptly.
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