DUNSON v. CONLEY et al
Filing
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ORDER denying 6 MOTION to Appoint Counsel,MOTION for Hearing,MOTION to Supplement the Record, granting 4 MOTION for Leave to Proceed in forma pauperis, denying 5 MOTION to Appoint Counsel and ORDER to Amend Complaint within twenty-one (21) days. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 9/12/16. (AGH)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DANNY LAMAR DUNSON,
Plaintiff,
VS.
Warden CONLEY, et al.,
Defendants.
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CASE NO. 5:16-CV-348-LJA-MSH
ORDER
Pro se Plaintiff Danny Lamar Dunson, a prisoner currently confined at the
Washington State Prison in Davisboro, Georgia, filed a complaint seeking relief pursuant
to 42 U.S.C. § 1983 (ECF No. 1). He seeks leave to proceed without prepayment of the
full filing fee (ECF No. 4). See 28 U.S.C. § 1915. Plaintiff also filed a motion to appoint
counsel (ECF No. 5) and a motion again seeking appointment of counsel, a hearing, and
to supplement the record (ECF No. 6).
I.
Motion for Leave to Proceed in forma pauperis
The Court reviewed Plaintiff’s motion to proceed in forma pauperis and, based on
his submissions, finds that Plaintiff is presently unable to pre-pay any portion of the filing
fee. The Court thus GRANTS Plaintiff’s motion (ECF No. 4) and waives the initial
partial payment required by 28 U.S.C. § 1915(b)(1).
Plaintiff is nevertheless obligated to pay the full filing fee, using the installment
payment plan described in 28 U.S.C. § 1915(b). The prison account custodian shall cause
to be remitted to the Clerk of this Court monthly payments of 20% of the preceding
month’s income credited to Plaintiff’s account (to the extent the account balance exceeds
$10) until the $350.00 filing fee has been paid in full. The Clerk of Court is directed to
send a copy of this Order to the business manager at Plaintiff’s place of incarceration.
II.
Additional Pending Motions
Plaintiff also filed two motions requesting appointed counsel. Under 28 U.S.C. §
1915(e)(1), the Court “may request an attorney to represent any person unable to afford
counsel.” There is, however, “no absolute constitutional right to the appointment of
counsel” in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987)
(per curiam). 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 considers, among other factors, the merits of
Plaintiff’s claims and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850,
853 (11th Cir. 1989) (en banc).
In this case, the Court is required to review Plaintiff’s Complaint to determine
whether Plaintiff’s allegations state a colorable legal claim. This process is routine in pro
se prisoner actions and is thus not an “exceptional circumstance” justifying appointment
of counsel. The facts as stated in Plaintiff’s current Complaint are not complicated, and
the law governing Plaintiff’s claims is neither novel nor complex. Plaintiff’s motions to
appoint counsel (ECF No. 4, 6) are accordingly DENIED. If, however, it becomes
apparent at some point later in these proceedings that counsel should be appointed in this
case, after due consideration of the complexity of the issues raised or their novelty, the
Court will entertain a renewed motion.
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Plaintiff also moved for a hearing and to supplement the record. His motion is
devoid of any reason why a hearing is necessary at this point, and it also fails to explain
how Plaintiff wishes to supplement the record. As such, the undersigned DENIES
Plaintiff’s motion (ECF No. 6).
III.
Order to Amend
Plaintiff alleges that on May 10, 2016, he was forced to work a prison detail
despite the fact that he is disabled and “draws a disability check in the free world.”
Compl. 5, ECF No. 1. More specifically, Plaintiff contends that Defendant Higgs, a
prison counselor at Washington State Prison (“WSP”) assigned Plaintiff to a DOT work
detail where he was required to cut down trees. Id. While assigned to this work detail,
Plaintiff was instructed by Defendant Hartley, a prison officer, to use a “long neck pole
saw an[d] go up to the top of this 30 feet steep hill an[d] cut all the trees down.” Id. at 6.
Plaintiff told Defendant Hartley that he did not know how to use the pole saw and had
never cut trees down before. Id. Despite this, Defendant Hartley ordered Plaintiff to cut
down the trees. Id. When Plaintiff attempted to cut down one of the trees, the pole saw
“threw [him] down,” and he struck his head, rolled down the hill, and suffered serious
injuries, including head trauma, a sprained MCL, and neck and back sprains.
Id.
Plaintiff alleges he narrowly averted more serious injury because the pole saw was still
running when Plaintiff fell. Id. at 7. Plaintiff contends he still suffers serious pain from
his injuries. Id.
Plaintiff seeks to raise claims against Defendants Higgs and Hartley regarding the
injuries he suffered while performing this work detail. “Prison work assignments are
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conditions of confinement subject to scrutiny under the Eighth Amendment.” Choate v.
Lockhart, 7 F.3d 1370, 1373 (8th Cir. 1993). As with other Eighth Amendment claims,
an inmate challenging his prison work conditions “must prove both an objective element,
which asks whether the deprivation was sufficiently serious, and a subjective element,
which asks whether the defendant officials acted with a sufficiently culpable state of
mind.” Id. “In cases challenging prison conditions, the state of mind giving rise to
liability is deliberate indifference.” Id. at 1373-74. A prisoner may be able to state a
claim for deliberate indifference in the work assignment context by showing that prison
officials knowingly forced him to perform physical labor that was beyond his strength,
unreasonably dangerous, or unduly painful. Id. at 1374.
The Court requires additional information before it can determine whether
Plaintiff’s allegations related to his work detail state a claim upon which relief may be
granted. Plaintiff has failed to provide sufficient facts about the nature and extent of his
alleged disability to allow the undersigned to determine whether Defendant Higgs or
Hartley acted with deliberate indifference when they required him to work on the prison
detail that resulted in his injuries.
In addition, to the extent Plaintiff is seeking to sue Defendant Conley in his
supervisory capacity as the warden of WSP, his present allegations fail to state a claim
upon which relief may be granted. Supervisors can only be held liable under § 1983 if
they personally participated in the allegedly unconstitutional conduct or if there is a
causal connection between their actions and the alleged constitutional violation. See,
e.g., Hendrix v. Tucker, 535 F. App’x 803, 805 (11th Cir. 2013) (per curiam). Plaintiff’s
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Complaint does not allege that Defendant Conley personally participated in any decision
making regarding Plaintiff’s work detail or follow-up medical care; had any customs or
policies regarding work details or medical care; directed any subordinates to act
unlawfully; or knew they were doing so, had an opportunity to act, and failed to stop
them. See id. at 805 (describing how causal connection can be established).
Because Plaintiff is acting pro se, the Court will give Plaintiff an opportunity to
amend his pleading to address the deficiencies noted above. See Duff v. Steub, 378 F.
App’x 868, 872 (11th Cir. 2010) (per curiam) (“When it appears a pro se plaintiff’s
complaint, if more carefully drafted, might state a claim, the district court should give the
pro se plaintiff an opportunity to amend his complaint instead of dismissing it.”). If
Plaintiff wishes to pursue his claims regarding his work assignment and his claims
against Defendant Conley, then Plaintiff is ORDERED to amend his Complaint with
additional factual allegations. The amended complaint will supersede the initially filed
complaint. When drafting his amendment, Plaintiff should list each individual he intends
to sue in this action on a sheet of paper and then, beside each name, describe exactly (1)
what each did, or did not do, to violate his constitutional rights and (2) what injury he
suffered as a result of each defendant’s actions. Plaintiff should be sure to describe, in
detail, the disabilities from which he suffers and how those disabilities affected his ability
to participate in the prison work detail at issue in this case. To survive preliminary
review, Plaintiff must allege facts creating “a reasonable expectation” that discovery will
reveal evidence to prove his claims. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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555-56 (2007). “Threadbare recitals of the elements of cause of action supported by
mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
Plaintiff shall have TWENTY-ONE (21) DAYS from the date of this Order to
amend his Complaint as described herein. Failure to fully and timely comply with this
Order may result in the dismissal of Plaintiff’s Complaint.
Plaintiff must also
immediately inform the Court in writing of any change in his mailing address. There will
be no service of process in this case until further order.
IV.
Conclusion
For the foregoing reasons, the undersigned GRANTS Plaintiff’s motion for leave
to proceed in forma pauperis (ECF No. 4) but DENIES Plaintiff’s motions to appoint
counsel, for a hearing, and to supplement the record (ECF Nos. 5, 6). Plaintiff is further
ORDERED to amend his Complaint to include additional factual information regarding
the nature and extent of his disability and regarding his claims against Defendant Conley
within TWENTY-ONE (21) DAYS of the date of this Order if he wishes to pursue such
claims.
SO ORDERED, this 12th day of September, 2016.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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