PEREZ v. GEORGIA DEPARTMENT OF CORRECTIONS et al
REPORT AND RECOMMENDATION as to 7 MOTION for Preliminary Injunction filed by RAMON PEREZ and 6 MOTION for MOTION for Preliminary Injunction filed by RAMON PEREZ; denying 8 Motion for Reconsideration 6 MOTION for Extension of Time to Complete Discovery and 7 MOTION as it relates to discovery. Ordered by US MAGISTRATE JUDGE CHARLES H. WEIGLE on 1/19/2023 (tlf).
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
OF CORRECTIONS, et al.,
ORDER & RECOMMENDATION
Plaintiff Ramon Perez, a prisoner in Telfair State Prison in Helena, Georgia, filed a
complaint pursuant to 42 U.S.C. § 1983. Compl., ECF No. 1. Plaintiff also filed a motion
for leave to proceed in this action in forma pauperis. Mot. for Leave to Proceed In Forma
Pauperis, ECF Nos. 2. Plaintiff’s motion to proceed in forma pauperis was granted, and
Plaintiff was ordered to pay an initial partial filing fee, Order, ECF No. 4, which he has
paid. Thus, Plaintiff’s complaint is ripe for preliminary review.
On that review, Plaintiff is now ordered to recast his complaint if he wants to
proceed with this action. Additionally, as set forth below, Plaintiff’s motions relating to
discovery (ECF Nos. 6, 7, & 8) are DENIED. Finally, it is RECOMMENDED that
Plaintiff’s motions for a preliminary injunction (ECF Nos. 6 & 7) also be DENIED.
PRELIMINARY REVIEW OF PLAINTIFF’S COMPLAINT
Standard of Review
Because he has been granted leave to proceed in forma pauperis, Plaintiff’s recast
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complaint is now ripe for preliminary review. See 28 U.S.C. § 1915A(a) (requiring the
screening of prisoner cases) & 28 U.S.C. § 1915(e) (regarding in forma pauperis
proceedings). When performing this review, the 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 are also “held to a less stringent standard than pleadings drafted by attorneys,”
and thus, pro se claims are “liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998). Still, the Court must dismiss a prisoner complaint if it “(1)
is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2)
seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller
v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The
Court may dismiss claims that are based on “indisputably meritless legal” theories and
“claims whose factual contentions are clearly baseless.” Id. (internal quotation marks
omitted). A complaint fails to state a claim if it does not include “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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The factual allegations in a complaint “must be enough to raise a right to relief above the
speculative level” and cannot “merely create a suspicion [of] a legally cognizable right
of action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, the
complaint must allege enough facts “to raise a reasonable expectation that discovery will
reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of
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a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678.
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 Cty, 50 F.3d 1579, 1582 (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).
II. Factual Allegations
In his complaint, Plaintiff alleges that he was prescribed crutches, which were
confiscated without a disciplinary report or a doctor’s order. Compl 6, ECF No. 1. In
particular, Plaintiff asserts that a medical official told him to come to medical to pick up
boots for his crutches. Id. When Plaintiff went to medical to get the boots, Lieutenant
Foster answered the door. Id. Plaintiff asserts that Foster’s job is to run the dining hall
rather than to work in medical. Id.
Plaintiff asked for a medical official so that he could pick up his order.
Without explanation, Lieutenant Foster grabbed Plaintiff’s crutches and confiscated them
as contraband. Id. Plaintiff asserts that the crutches were part of his medical treatment
and that by taking them without providing an inventory sheet, Foster acted improperly.
In addition to Lieutenant Foster, Plaintiff names Warden Berry, Grievance
Coordinator Whimpple, Kelly D. Lindsey, Dr. Harold Tate, Ranjiv Saini, Dr. Ekinunife,
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Dr. Steven Niergarth, Kristen Owens, and Kirstie Murner as defendants in this lawsuit.
Id. at 5.
A. Deprivation of Property
Insofar as Plaintiff asserts that his crutches were taken, he may have intended to
assert a claim for deprivation of property without due process of law. To state a claim for
denial of due process, a plaintiff must allege that he was deprived of life, liberty, or property
without due process of law.
See Wolff v. McDonnell, 418 U.S. 539, 556 (1974)
(recognizing that prisoners “may not be deprived of life, liberty, or property without due
process of law”). The Due Process Clause of the Fourteenth Amendment is not offended,
however, when a government official deprives an individual of his personal property if the
state makes available a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S.
517, 533 (1984). The State of Georgia provides Plaintiff an adequate post-deprivation
remedy for the loss of his property through a state court action, which covers Plaintiff’s
loss of property in this situation. See O.C.G.A. §§ 51-10-1 through 51-10-6. Thus,
Plaintiff’s allegations regarding Foster taking his property do not state a due process claim.
B. Deliberate Indifference to a Serious Medical Need
Insofar as he is alleging that his medically necessary crutches were taken, Plaintiff
may also have intended to assert a claim for deliberate indifference to a serious medical
need. In order to state a claim for deliberate indifference to a serious medical need, a
prisoner must allege facts to show that he had a medical need that was objectively serious
and that the defendant was deliberately indifferent to that need. Farrow v. West, 320 F.3d
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1235, 1243 (11th Cir. 2003). A serious medical need is “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.” Hill v. Dekalb Reg’l Youth Det.
Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) (quotation marks and citation omitted). Further,
the condition must be one that would pose a “substantial risk of serious harm” if left
unattended. Farrow, 40 F.3d at 1243.
An official acts with deliberate indifference when he or she “knows of and
disregards an excessive risk to inmate health and safety.” Farmer v. Brennan, 511 U.S.
825, 837 (1994). Additionally, the disregard of risk must be “by conduct that is more than
mere negligence.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011). “Conduct
that is more than mere negligence includes: (1) grossly inadequate care; (2) a decision to
take an easier but less efficacious course of treatment; and (3) medical care that is so
cursory as to amount to no treatment at all.” Id. A prison official “who delays necessary
treatment for non-medical reasons may exhibit deliberate indifference.” Id. Finally,
“[a]n Eighth Amendment violation may also occur when state officials knowingly interfere
with a physician’s prescribed course of treatment.” Id.
Although Plaintiff does not assert any facts regarding the reason the crutches were
prescribed, he does allege that a doctor prescribed them for him, suggesting that he may
have had a serious medical need. Plaintiff does not, however, allege any facts to show
that Foster was aware of Plaintiff’s serious medical need or that Foster knew of and
disregarded any risk of harm to Plaintiff if the crutches were taken from him. Thus,
Plaintiff’s allegations do not show that Foster was deliberately indifferent to Plaintiff’s
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need. Moreover, Plaintiff includes a number of other defendants, but he does not allege
any facts with regard to those defendants to show that any of them were deliberately
indifferent to his serious medical need, either related to the crutches or otherwise. Thus,
he also has not stated a claim for deliberate indifference to a serious medical need.
C. Statute of Limitations
In addition to the issues set forth above, it appears possible that the statute of
limitations may have run on Plaintiff’s claims. In this regard, § 1983 has no statute of
limitations of its own, and instead, is governed in each case by the forum state’s general
personal injury statute of limitations. Owens v. Okure, 488 U.S. 235, 236 (1989) (citing
Wilson v. Garcia, 471 U.S. 261 (1985)). Thus, Georgia’s two-year personal injury statute
of limitations governs 42 U.S.C. § 1983 civil rights claims. Reynolds v. Murray, 170 F.
App’x 49, 50-51 (11th Cir. 2006) (per curiam) (citing Ga. Code. Ann. § 9-3-33 (1982)).
In response to the question asking when this incident took place, Plaintiff asserts
that it happened in July 2020. If Plaintiff’s claims accrued in July 2020, then the statute
of limitations expired two years later, in July 2022. Plaintiff did not file his complaint
until October 2022. Thus, it appears possible that these claims may be barred by the
statute of limitations.
Nevertheless, it is not entirely clear from Plaintiff’s allegations when exactly the
events took place. For instance, if Plaintiff was prescribed the crutches in July 2020, but
they were confiscated later than that, the claims may not have accrued until later.
Additionally, it is possible under this scenario that the statute of limitations may have run
while this case has been pending. If that is the case, then any dismissal of this action
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would effectively be with prejudice. Under these circumstances, Plaintiff will now be
given the opportunity to recast his complaint to attempt to state a claim for relief.
Order to Recast
In recasting his complaint, Plaintiff shall clearly identify those individuals he wishes
to include as named defendants in this case. Plaintiff must allege facts showing what these
defendants did or did not do that he believes violated his constitutional rights. If Plaintiff
makes a claim that is not connected to any defendant, that claim will be dismissed.
Similarly, if Plaintiff names a defendant but does not connect that defendant with a
particular claim, that defendant will be dismissed.
When drafting his statement of claims, Plaintiff should list numbered responses to
the following questions (to the extent possible) along with the name of each defendant:
What did this defendant do (or not do) to violate your rights? In other words:
What was the extent of this defendant’s authority or role in the
unconstitutional conduct? Is he a supervisory official? Was the defendant
personally involved in the constitutional violation? If not, did his actions
otherwise cause the unconstitutional action? How do you know?
When and where did each action occur (to the extent memory allows)?
How were you injured as a result of this defendant’s actions or decisions? If
your injury is related to a change in the conditions of your confinement,
please describe how those conditions differ from those in general population.
If you have been physically injured, explain the extent of your injuries and
any medical care requested or provided.
How and when did this defendant learn of your injuries or otherwise become
aware of a substantial risk that you could suffer a serious injury?
What did this defendant do (or not do) in response to this knowledge?
What relief you seek from this defendant?
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Plaintiff should state his claims as simply as possible; he also need not use legal
terminology or cite any specific statute or case law to state a claim. See Fed. R. Civ. P. 8.
The recast complaint will take the place of and supersede Plaintiff’s prior complaint,
such that the Court will not look back to the original complaint or any of the motions that
Plaintiff has filed to date to determine whether Plaintiff has stated a claim. Therefore,
Plaintiff should take care to include all relevant factual allegations in his recast complaint.
Plaintiff shall have FOURTEEN (14) DAYS from the date of this order to recast his
complaint as directed herein. Failure to do so, or to otherwise fully and timely comply
with this order, may result in the dismissal of Plaintiff’s complaint.
In his response to a show cause order from Court, Plaintiff also moved for a ninetyday extension of time to complete discovery. Response to Show Cause Order, ECF No. 6.
As Plaintiff has been ordered to file a recast complaint and no defendant has been served,
discovery has not yet begun in this case. Thus, there is no cause to extend it, and Plaintiff’s
motion is DENIED.
In separate motions, Plaintiff makes other references to discovery requests and his
attempts to complete discovery. See generally Mot. for Prelim. Inj., ECF No. 7; Mot. for
Recon., ECF No. 8. In the second of these, Plaintiff asks the Court to order defendant
Foster to reply to Plaintiff’s interrogatories and request for production of documents. Mot.
for Recon., ECF No. 8. As discovery has not yet begun, Plaintiff’s requests in this regard
are also DENIED. If this case proceeds to discovery, Plaintiff must serve his discovery
requests directly on any defendant or defendants in this case. Only if the defendant fails
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to respond to Plaintiff’s proper discovery requests should Plaintiff seek this Court’s
MOTION FOR LOCAL RULES
In one of his filings, Plaintiff also requests a copy of the Local Rules for the Middle
District of Georgia. Mot. for Prelim. Inj. 2, ECF No. 7. That request is GRANTED, and
the CLERK is DIRECTED to forward a copy of the Local Rules to Plaintiff.
MOTION FOR PRELIMINARY INJUNCTION
In his show cause response, Plaintiff asks for a preliminary injunction ordering the
defendants to provide Plaintiff with medication and treatment. Response to Show Cause
Order 3, ECF No. 6. Plaintiff makes a similar request in another motion, asking for the
defendants to provide him with medication and treatment for heart conditions and other
health issues. Mot. for Prelim. Inj. 4-5, ECF No. 7.
A temporary restraining order (“TRO”) or preliminary injunction is a drastic remedy
used primarily to preserve the status quo rather than to grant most or all of the substantive
relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.
1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). 1 Factors a movant
must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success
on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened
injury outweighs the harm the TRO would inflict on the non-movant; and (4) the TRO
The standard for obtaining a TRO is the same as the standard for obtaining a preliminary
injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th
Cir. 2001) (per curiam); Windsor v. United States, 379 F. App’x 912, 916-17 (11th Cir.
2010) (per curiam).
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would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (per
At this stage, Plaintiff has not shown a substantial likelihood of success on the
merits. In particular, Plaintiff has not presented any evidence to support his deliberate
indifference claim. Thus, he is asking the Court to take action without evidence or a
complete picture of the situation. Moreover, Plaintiff refers to medical conditions in his
motions that he does not address in his complaint. In this regard, he appears to be asking
for relief that is not directly related to the alleged violation.
Plaintiff also has not provided any argument or evidence showing that any of the
other factors for granting a preliminary injunction weigh in his favor. Accordingly, it is
now RECOMMENDED that Plaintiff’s motions for a preliminary injunction be
Therefore, for the reasons set forth above, Plaintiff is now ORDERED to file a
recast complaint if he wants to proceed with this action. Plaintiff shall have FOURTEEN
(14) DAYS from the date of this order to file his recast complaint. Plaintiff’s failure to
fully and timely comply with this order to recast may result in the dismissal of this action.
The CLERK is DIRECTED to forward Plaintiff a blank 42 U.S.C. § 1983 complaint form
along with his service copy of this order (with the civil action number showing on both).
As noted above, the CLERK is also DIRECTED to forward Plaintiff a copy of the Local
Rules along with the complaint form and this order. Plaintiff’s motions relating to
discovery (ECF Nos. 6, 7, & 8) are DENIED, and it is RECOMMENDED that Plaintiff’s
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motions for a preliminary injunction (ECF Nos. 6, 7, & 8) also be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to this order and recommendation with the United States District Judge to whom this case
is assigned WITHIN FOURTEEN (14) DAYS after being served with a copy of this order
and recommendation. The parties may seek an extension of time in which to file written
objections, provided a request for an extension is filed prior to the deadline for filing written
objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga.
L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the
right to challenge on appeal the district judge’s order based on factual and legal conclusions
to which no objection was timely made. See 11th Cir. R. 3-1.
SO ORDERED and RECOMMENDED, this 19th day of January, 2023.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge
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