WOODY v. BRYSON et al

Filing 6

ORDER: Plaintiffs First Amendment claim is not frivolous, and is therefore not dismissed. Plaintiffs other claims fail to state a claim for relief, and are dismissed without prejudice pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e). Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 05/16/2017. (mdm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JEREMY JAY WOODY,
Plaintiff,
v.
HOMER BRYSON, et al,
Defendants.

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CASE NO.: 5:16-CV-00467-LJA

ORDER
This case is currently before the Court for preliminary screening as required by the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A. Plaintiff Jeremy Jay Woody, an
inmate confined at Central State Prison in Macon Georgia, filed this action pursuant to 42
U.S.C. § 1983, alleging that prison officials failed to provide necessary accommodations for his
hearing disability, in violation of Plaintiff’s constitutional rights. (Doc. 1). Before the Court is
also Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 2) and Plaintiff’s request for
appointment of counsel (Doc. 1, p. 17).
I. Motion to Proceed In Forma Pauperis
Pursuant to 28 U.S.C. § 1915, the district courts may authorize the commencement a
civil action in forma pauperis (“IFP”) if the plaintiff shows that he is indigent and currently
unable to pay the court’s filing fee. A prisoner seeking to proceed under § 1915 must provide
the district court with both (1) an affidavit in support of his claim of indigence and (2) a
certified copy of his prison “trust fund account statement (or institutional equivalent) for the
6-month period immediately preceding the filing of the complaint.” § 1915(b).
Plaintiff moved for leave to proceed in forma pauperis in this case, and his motion was
granted with the requirement that he pay an initial partial filing fee of $15.80. That payment has
been received by the Clerk of Court; thus Plaintiff’s complaint is now ripe for preliminary

screening. Plaintiff is, however, also required to pay the remainder of the filing fee, in
installments, under the payment plan as set forth in § 1915(b). For this reason, it is 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
Because Plaintiff has now been granted leave to proceed in forma paupers in the
above-captioned case, it is hereby ORDERED that 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 trust account at said
institution until the $350.00 filing fee has been paid in full. It is further ORDERED that these
funds be collected and withheld by the prison account custodian who shall, on a monthly basis,
forward the amount collected to the CLERK of this Court as payment towards the filing fee,
provided the amount in the prisoner’s account exceeds $10.00. The custodian is DIRECTED
to continue these collections from Plaintiff’s trust account until the entire $350.00 filing fee
has been paid, notwithstanding the dismissal of Plaintiff’s lawsuit or the granting of judgment
against him prior to the collection of the full filing fee.
B. Plaintiff’s Obligations Upon Release
In the event Plaintiff is hereafter released from the custody of the State of Georgia or
any county thereof, he shall remain obligated to continue making monthly payments to the
CLERK toward the balance due until said amount has been paid in full. 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 may be dismissed if he is able to make payments but fails to do so.
II.

Motion for Appointment of Counsel
Before addressing the Complaint, the Court must also consider Plaintiff’s request for

counsel. Though not raised in a separate motion, Plaintiff’s Complaint, when liberally

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construed, alleges that his physical impairment may render him unable to adequately prosecute
his case without the assistance of counsel. (Doc. 1, p. 17).
The district court is vested with the discretion, by 28 U.S.C. § 1915(e), to appoint
counsel in a civil case for a plaintiff unable to afford an attorney. Civil litigants (including
indigent prisoners pursuing a § 1983 action), however, do not have an absolute right to the
appointment of counsel. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). The
appointment of counsel in a civil case is “a privilege that is justified only by exceptional
circumstances, such as where the facts and legal issues are so novel or complex as to require
the assistance of a trained practitioner.” Id. “The key is whether the pro se litigant needs help in
presenting the essential merits of his or her position to the court. Where the facts and issues
are simple, he or she usually will not need such help.” Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir.
1993).
In this case, Plaintiff has filed a § 1983 complaint on the standard complaint form
designed for pro se litigants. The PLRA requires that the undersigned now review Plaintiff’s
complaint to determine whether he can possibly state a viable claim against the named
defendants. 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 could limit Plaintiff’s ability to present his case. See Kilgo, 983 F.2d 193-94. Further,
through his pleadings, Plaintiff has already shown that he is able to clearly and logically
communicate his factual and legal claims to the Court in writing without the need of counsel.
Accordingly, Plaintiff’s request for counsel is DENIED.
III.

Authority & Standard for Preliminary Review
The Court will now turn to Plaintiff’s Complaint. 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).
Frivolity 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 under either statute is the

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same. When conducting a preliminary review, the court must accept all factual allegations in
the complaint as true and make all inferences in the light most favorable to the plaintiff. 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 thus pro se complaints are “liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
The district court, however, cannot allow a plaintiff to litigate frivolous, conclusory, or
speculative claims. As part of the preliminary screening, the court is obligated to dismiss a
complaint, or any part thereof, prior to service, if it is apparent that the plaintiff’s allegations,
when taken as true, 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. To state a viable claim, the complaint must
include “enough factual matter” to – not only “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests” – but to also create “a reasonable expectation”
that discovery will reveal evidence to prove the claim(s). Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007). The claims cannot be speculative or based solely on the plaintiff’s beliefs
or suspicions; each must be supported by allegations of relevant and discoverable fact. Id.
Thus, neither legal conclusions nor a recitation of legally relevant terms, standing alone is
sufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (holding that “labels and
conclusions” or “a formulaic recitation of the elements” of a cause of action is insufficient to
state a claim). Claims without any “arguable basis in law or fact” are considered frivolous.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
IV.

Plaintiff’s Complaint
In this case, Plaintiff’s claims arise out of the conditions of his confinement at Central

State Prison. Doc. 1 at 6. Plaintiff, a hearing-impaired inmate, complains that prison officials
have refused (and continue to refuse) to adequately accommodate his need for alternative
forms of communication with prison staff and the persons outside of the prison. Id. at 6-16.
Prison officials require Plaintiff to communicate by writing or reading lips. Id. at 6. No sign
language interpreters are provided for conversations with counselors, prison officials, or even
during disciplinary hearings, which have always, according to Plaintiff, resulted in his

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conviction of some offense. Id. at 7, 9, 15-16. Plaintiff contends that his limited ability to
communicate with others causes him to be: “continually discriminated and alienated by the
staff and counselors”; unable to participate in programs available to other inmates; denied
access training programs and educational classes; unable to effectively communicate with
corrections officers; and hindered when seeking medical and mental health assistance. Id. at
15-16.
Plaintiff is unable to use a voice-only telephone. Id. at 15. Thus, on March 9, 2016,
Plaintiff asked officers if he could use the prison’s “TTY machine” to make a phone call. Id. at
6. The officers responded that their TTY machine was “inaccessible and outdated” and that, if
Plaintiff could not use the telephone, that was “[his] problem.” Id. Plaintiff then filed a
grievance with the warden complaining that he did not have a means of communicating with
his family and friends and requested that the prison provide a “videophone relay service (VRS)
interpreter for deaf inmates,” which is a video interpreting service that allows a
hearing-impaired person to use sign language to communicate over the telephone. Id. at 7.
Plaintiff’s grievance also included the name, address, and phone number of a federally funded
company that provides interpreting services for deaf prisoners, such as a VRS, free of charge.
Id.
Shortly thereafter, Plaintiff was called to meet with the senior counselor, Pashion
Chambers. Id. At that time, Plaintiff asked if he could have either an interpreter or a device that
provides sign language interpreting services (video remote interpreting or “VRI”) for their
conversation, and she said “no.” Id. She then informed him that the warden denied his
grievance. Id. The denial stated that the matter was “out of the control of the Department of
Corrections” and that “JPay” (an inmate communications service) was “working on a solution
to that problem.” Id. JPay, however, did not have VRS capability, and its solution would still
require the prison to provide interpreters. Id. at 8. Plaintiff refused to sign the grievance during
that meeting. Id. at 7-8. Later, when attempting to obtain a copy of the denial, Plaintiff
approached Deputy Warden Thomas with a note asking if could speak to him with video
interpreting. Id. at 9. Thomas refused, demanding that Plaintiff write down what he wanted. Id.
Due to the distraction of other inmates, however, Plaintiff could not keep Thomas’ attention

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and could not accurately lip read his responses because of Thomas’ use of “care and treatment
terminology” that Plaintiff could not decipher. Id. at 11.
Plaintiff appealed the denial of his grievance to the “central office” and again explained
both the need for VRS and how the prison could to get the service free of charge. Id. at 12. His
appeal, however, was denied because (1) the mental health unit at the prison already had a
device that would allow Plaintiff view his family members and speak to them in sign language,
and (2) Plaintiff also had the ability to “to communicate with individuals outside the institution
[by] using the US Postal Service.” Id. at 13.
When unsuccessful in the grievance process, Plaintiff filed the present action against
Counselor Chambers, Deputy Warden Thomas, and many other prison officials (not
specifically mentioned in his statement of claims). In light of Plaintiff’s many allegations, the
Court liberally construes his complaint as bringing claims under the First, Eighth, and
Fourteenth Amendments of the United States Constitution, the Title II of Americans with
Disability Act (“ADA”), and § 504 of the Rehabilitation Act (“RA”). Plaintiff prays for
$15,000,000 in damages and an injunction requiring updated technology for hearing impaired
inmates, certified American Sign Language interpreters, and deaf advocates and services within
in the prison. Id. at 17.
A. First Amendment Claims
Despite their incarceration, prisoners retain “the First Amendment right to
communicate with family and friends.” Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996);
see also Heyer v. United States Bureau of Prisons, 849 F.3d 202, 213 (4th Cir. 2017) (“Courts have
generally concluded that the First Amendment rights retained by convicted prisoners include
the right to communicate with others beyond the prison walls.”). While it is not required that
deaf or hearing impaired prisoners have the same access to TTY machines or VRI/VRS
services that non-impaired prisoners have to telephones, unreasonable restrictions on access
to TTY machines or VRI/VRS services impinge on prisoners’ First Amendment rights. See
Heyer, 849 F.3d at 218; Tanney v. Boles, 400 F. Supp. 2d 1027, 1042 (E.D. Mich. 2005). While a
hearing-impaired prisoner’s right to communicate has not been addressed in this Circuit, in

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Heyer, the Fourth Circuit concluded that the Bureau of Prisons interfered with the plaintiff’s
First Amendment rights by regularly restricting or denying use to the TTY machine, keeping
the TTY machine in a location where it was never usable on the weekends or at night, and by
training so few staff members on its operation that the plaintiff could not use the machine
when those staff members were unavailable. 849 F.3d at 218. Similarly, in Tanney, the District
Court for the Eastern District of Michigan concluded that the plaintiff’s First Amendment
rights were implicated when there was only one TTY machine, which was kept locked in an
office with no policy on availability and with requests for use often being denied. 400 F. Supp.
2d at 1042.
Plaintiff alleges that there is no TTY available for his use and that the only VRI/VRS
service available is housed in the mental health unit. He also alleges that each request for
assistance in the mental health unit “leads to abusive reactions retaliations and threats [sic].”
(Doc. 1, at 14). Because of the lack of technology available to Plaintiff, he has not been able to
communicate with his family in almost three years. Id. at 15. In light of Plaintiff’s allegations
that he is regularly restricted from using the VRI/VRS service and that there is no TTY service
available, the Court finds that Plaintiff’s First Amendment claim is not frivolous.
B. Eighth Amendment Claims
Plaintiff’s Complaint may also be liberally construed as attempting claims under the
Eighth Amendment. The Complaint asserts that the lack of sign-language interpreters and/or
another assistive device has hindered Plaintiff’s access to medical and mental health care as
well as his ability to understand (and communicate with) prison guards. “The Supreme Court
has interpreted the Eighth Amendment to include ‘deliberate indifference to serious medical
needs of prisoners.’” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). “To show that a prison official acted with deliberate
indifference to serious medical needs, a plaintiff must satisfy both an objective and subjective
inquiry.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). “First, a plaintiff must set forth
evidence of an objectively serious medical need.” Id. “Second, a plaintiff must prove that the
prison official acted with an attitude of ‘deliberate indifference’ to that serious medical need.”

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Id.
“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 recognized
the necessity for a doctor’s attention.’” Id. (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d
1176, 1187 (11th Cir. 1994). In either case, the medical need must pose a “substantial risk of
serious harm” if left untreated. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). Plaintiff
alleges that he suffers from “a bad hernia problem” and “melaomnia [sic] cancer.” (Doc. 1 at
15). Cancer is a serious medical need under the Eleventh Circuit’s test. See D’Amico v. Montoya,
No. 4:15cv127-MW/CAS, 2016 WL 4708950 at * 4 (N.D. Fla. July 28, 2015).
To demonstrate that a prison official acted with “deliberate indifference,” the prisoner
must prove: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and
(3) by conduct that is more than mere negligence.” Brown, 387 F.3d at 1351. Deliberate
indifference may include “a complete denial of readily available treatment,” “a defendant who
delays necessary treatment for non-medical reasons,” or state officials who “knowingly
interfere with a physician’s prescribed course of treatment.” Bingham, 654 F.3d at 1176. Here,
Plaintiff has not alleged that the prison officials who denied him access to a TTY machine or
VRI/VRS services knew of or disregarded his medical conditions, or even that Plaintiff sought
treatment for such conditions. Accordingly, nothing in the Complaint suggests that the prison
officials acted with deliberate indifference to Plaintiff’s serious medical needs, and Plaintiff has
failed to state a claim for an Eighth Amendment violation.
C. Fourteenth Amendment Equal Protection Claim
Plaintiff also asserts that he is being denied “equal access” to telephone
communication. The Court liberally construes this as an attempted equal protection claim
under the Fourteenth Amendment. “[T]he disabled are not a suspect class, and thus a
government’s differential treatment of them is only entitled to rational basis review.” Rylee v.
Chapman, 316 F. App’x 901, 907 (11th Cir. 2009); see also Lussier v. Dugger, 904 F.2d 661, 671
(11th Cir. 1990); Bonner v. Lewis, 857 F.2d 559, 565 (9th Cir. 1988). Accordingly, in order to
state a Fourteenth Amendment Claim, Plaintiff must demonstrate that he has been

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“intentionally treated differently from others similarly situated and that there is no rational
basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
To be “similarly situated,” “the comparators must be prima facie identical in all relevant
respects.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1264 (11th Cir. 2010). While the
Eleventh Circuit has not directly addressed the issue of unequal access to telephone
communication, the Eighth Circuit and other district courts have held that non-hearing
impaired prisoners are not similarly situated to hearing-impaired or deaf prisoners. See Hansen
v. Rimel, 104 F.3d 189, 190 (8th Cir. 1997); Douglas v. Gusman, 567 F. Supp. 2d 877, 887 (E.D.
La. 2008); Spurlock v. Simmons, 88 F. Supp. 2d 1189, 1194 (D. Kan. 2000). For example, in
Spurlock, the United States District Court for Kansas explained that it was “uncontroverted”
that the plaintiff was unable to use the “regular inmate telephone system,” and had to use a
facility telephone outfitted with the appropriate equipment. The Court held that the plaintiff
was not similarly situated to non-hearing impaired inmates because such inmates “do not have
unlimited access to facility telephones;” they only have “unlimited access to the inmate
telephone system.” Likewise, Plaintiff has failed to show that he was treated differently than
similarly situated inmates that require the same technology to use telephones or other
communication devices. Accordingly, he has failed to state an equal protection claim.
D. Fourteenth Amendment Due Process Claim
Plaintiff also alleges a violation of his due process rights. The Complaint alleges that
Plaintiff was denied access to an interpreter during disciplinary hearings which resulted in
multiple convictions. Evidence suggesting that Plaintiff was denied a fair disciplinary hearing is
sufficient to state a due process claim. A prisoner seeking to state a claim for violation of due
process must first allege facts to show that the denial of a fair hearing caused him to suffer an
“atypical and significant hardship … in relation to the ordinary incidents of prison life.” See
Sandin v. Conner, 515 U.S. 472, 484 (1995). For example, loss of privileges is not deemed to be
an atypical hardship. See Overton v. Bazzetta, 539 U.S. 136-37 (2003); Moulds v. Bullard, 345 F.
App’x 387, 396 (11th Cir. 2009). In this case, Plaintiff fails to allege any facts to show that the
absence of an interpreter at his disciplinary hearing caused him to suffer an “atypical and

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significant” hardship. Accordingly, Plaintiff failed to state a claim for denial of due process.
E. ADA & RA Claims
Finally, though not explicitly cited in the Complaint, Plaintiff’s claims are also liberally
construed as including possible claims for violation of his rights under the ADA and RA. Title
II of the ADA prohibits exclusion from services, programs, or activities of a “public entity” as
well as “discrimination by any such entity.” See 42 U.S.C. § 12132; Edison v. Douberly, 604 F.3d
1307, 1308 (11th Cir. 2010). The RA similarly provides that, “No otherwise qualified individual
with a disability ... shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). State agencies
and prisons are considered to be “public entities” which may be sued under the ADA and RA,
United States v. Georgia, 546 U.S. 151, 154, (2006), and the claims under these statutes are
governed by the same standard. Cash v. Smith, 231 F.3d 1301, 1305 n.2 (11th Cir. 2000).
To state a claim under the ADA or RA, a plaintiff generally must prove (1) that
he is a qualified individual with a disability; (2) that he was either excluded from
participation in or denied the benefits of a public entity's services, programs, or
activities, or was otherwise discriminated against by the public entity; and (3)
that the exclusion, denial of benefit, or discrimination was by reason of the
plaintiff's disability.
Hatcher v. Thomas, No. 2:14-CV-67-WHA, 2017 WL 712634, at *4–5 (M.D. Ala. Feb. 1, 2017),
recommendation adopted, No. 2:14-CV-67, 2017 WL 710056 (Feb. 22, 2017).
In this case, Plaintiff has named Homer Byson, Clinton Perry, Dexter Spikes, Michael
Thomas, Tijuana Hall, Sheneca King, David Ethridge, Tommy Coffee, Syphronia, Eugenia
Smith, Sidonie Hall, Racheal Moncrief, Pashion Chamblers, Junaita Thrope, Walter Berry,
John Fagan, Williams Cznareski, Komola Edwards, Mizell Davis, Ms. Jones, and Julie Martin
as defendants. Neither the Georgia Department of Corrections nor the prison is named party.
Individuals employed by a correctional facility cannot be sued under either the ADA or RA.
Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1172 (11th Cir. 2003). Thus, the undersigned

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will, for the purpose of this review, liberally construe the complaint as bringing claims against
the defendants in both in their individual and official capacities. Claims against employees in
their “official capacities” are, in essence, against a “public entity,” the Georgia Department of
Corrections. See e.g., Edison v. Douberly, 604 F.3d 1307, 1308 (11th Cir. 2010).
Even when Plaintiff’s complaint is read in the most generous light possible, however,
Plaintiff’s vague factual allegations cannot support a claim against the Department of
Corrections under either statute. In his complaint, Plaintiff alleges only that he has been
unable to participate in programs available to other inmates because there are no training
programs or educational classes with certified American Sign Language interpreters. He does
not identify any specific programs or classes for which he was both eligible and denied access;
nor does he specify who was responsible for denying him such access, when, or why.
Without more factual support, Plaintiff’s conclusory allegations fail to state a claim upon
which relief can be granted.
V.

Conclusion
Plaintiff’s First Amendment claim is not frivolous, and is therefore not dismissed.

Plaintiff’s other claims fail to state a claim for relief, and are dismissed without prejudice
pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e).

SO ORDERED, this

16th

day of

May , 2017.

/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT

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