MILLER v. LEO et al

Filing 8

ORDER granting 7 Motion for Leave to Proceed in forma pauperis. ORDER Directing Service. REPORT AND RECOMMENDATION re 1 Complaint. Ordered by US MAGISTRATE JUDGE AMELIA G HELMICK on 1/6/2025. (mlb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TRACY ANTHONY MILLER,
Plaintiff,
v.
DR. LEO, et al.,
Defendants.
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Case No. 5:24-cv-199-TES-AGH

ORDER AND RECOMMENDATION
In accordance with the Court’s previous orders and instructions, pro se Plaintiff
Tracy Anthony Miller, a parolee formerly housed in the Bostick Nursing Center in
Milledgeville, Georgia, filed a non-prisoner motion for leave to proceed in forma
pauperis.

Plaintiff’s motion (ECF No. 7) is GRANTED because his submissions

show he cannot pay the Court’s filing fee, and his claims are ripe for preliminary
review under 28 U.S.C. § 1915(e). After this review, the following claims raised
pursuant to 42 U.S.C. § 1983 shall proceed for further development: (1) claims that
Defendants Leo and Mitchell forced Plaintiff to take unnecessary medication in
violation of the United States Constitution; (2) claims that Defendants Leo and
Mitchell retaliated against Plaintiff in violation of the United States Constitution and
the Federal Nursing Home Reform Act (“FNHRA”); (3) claims that Defendants Leo
and Mitchell chemically restrained Plaintiff in violation of the FNHRA; and (4) claims
that Defendant Mitchell denied Plaintiff visitation in violation of the FNHRA.1 It is

1

The docket in this case shows that an individual named “Colette Lewis” is a Defendant in this

RECOMMENDED, however, that Plaintiff’s remaining claims be DISMISSED
without prejudice.
PRELIMINARY REVIEW OF PLAINTIFF’S CLAIMS
I.

Standard of Review

Because Plaintiff is proceeding in forma pauperis (“IFP”) in this case, the Court
conducts a preliminary screening of Plaintiff’s complaint in accordance with the
provisions of 28 U.S.C. § 1915(e)(2)(B). “Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.”

Id. at 1160 (internal quotation marks and citation omitted).

Still,

under § 1915(e), a district court must dismiss the complaint if the court determines
that the complaint is frivolous, malicious, fails to state a claim upon which relief may
be granted, or seeks monetary damages from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
A claim is frivolous when “it ‘lacks an arguable basis either in law or in fact.’”
Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting Neitzke v. Williams,
490 U.S. 319, 327 (1989)).

The Court may dismiss claims that are based on

“indisputably meritless legal” theories and “claims whose factual contentions are
clearly baseless.”

Id.

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

action. It appears this individual’s full name is Collette Lewis Mitchell. See, e.g., Compl. 1, ECF
No. 1. The Clerk is therefore DIRECTED to change Defendant Colette Lewis to Defendant Collette
Lewis Mitchell on the docket, and this individual will be referred to as Defendant Mitchell in this
Order and Recommendation.

2

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[.]” Twombly, 550 U.S.
at 555. 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 a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
II.

Factual Allegations

Plaintiff’s claims arise from his treatment in the Bostick Nursing Center
(“Bostick”) in Milledgeville, Georgia. Compl. 5, ECF No. 1.2 Bostick is a nursing
facility that houses “elderly and infirm inmates who otherwise might not have a place
to go when they’re paroled.” Rhonda Cook, Nursing home for prison inmates opening
in

Milledgeville,

Atlanta

Journal-Constitution

(Dec.

19,

2016),

https://www.ajc.com/news/local/nursing-home-for-prison-inmates-openingmilledgeville/bxty42FvMBDkO7T8jla8WP/. Plaintiff is a parolee who was granted
clemency by the Georgia Board of Pardons and Paroles on January 18, 2023.
Compl. 5.

After his release from prison, Plaintiff was placed at Bostick because

“Bostic[k] administration could help get his benefits including Social Security
Medicaid and Medicare started[.]” Id. Plaintiff was discharged from the facility
sometime in late July or early August 2024. See Mail Returned, Aug. 27, 2024, ECF

In the caption of his complaint, Plaintiff lists “Bostic Correct Life Entity” or “Bostic Nursing Center
Correct Life Entity” as the full name of this Defendant. Compl. 1, 4.
2

3

No. 5.
Plaintiff contends the administrator of Bostick, Defendant Mitchell, runs the
facility like a prison even though Bostick is “owned by a private owner with no ties to
Georgia Department of Corrections nor the Georgia Board of Pardons or Parole[.]”
Compl. 5.

For example, Defendant Mitchell requires residents to quarantine;

installed locking doors and unopenable windows in the dorms; requires safety officers
to escort residents to and from her office; authorizes searches and seizures of
residents’ dorms; denies day passes; and maintains inappropriate control over
residents’ personal funds. Id. at 5, 8-10. Plaintiff further alleges that he and other
Bostick residents have been physically, verbally, and emotionally abused.

Id.

Among other things, Plaintiff states that Defendant Mitchell and Defendant Leo, the
“Medical Director of Mental Health” at Bostick, placed him on psychotropic drugs as
a means of “chemical restraint[.]”

Id. at 4, 6-8.

In addition to restraining his

movement, these drugs caused Plaintiff to fall and suffer injuries. See, e.g., id. at 8.
When Plaintiff filed grievances concerning his treatment at Bostick, staff retaliated
against him. Id. at 6-8. He also generally contends that Defendants discriminated
against him on the basis of his race and disability. Id. at 10.
In addition to Defendants Mitchell and Leo, Plaintiff sues James Rogan,
Bostick’s “Medical Director [of] Residents”; Aaron Minniefield, Bostick’s CEO;3 and

Plaintiff spells this Defendant’s name “Aaron Minified” in the caption of his Complaint and “Aaron
Minniefield” when he lists all Defendants later in his Complaint. The Court assumes this is the same
person.
3

4

Bostick itself. Compl. 4, ECF No. 1. Though the precise nature of each individual
claim Plaintiff intends to bring is unclear, he is generally contending that his
treatment at Bostick violated his constitutional rights and other federal laws, relying
specifically on 42 U.S.C. § 1983, the Americans with Disabilities Act, 42 U.S.C.
§ 12101, et seq.; the Rehabilitation Act, 29 U.S.C. § 701, et seq.; and the FNHRA. See,
e.g., Compl. 6.

As a result of these alleged violations, Plaintiff seeks monetary

damages and injunctive relief. Id. at 11.
III.

Plaintiff’s Claims
A.

Claims against Defendants Minified and Rogan

As a preliminary matter, Plaintiff fails to plead facts associating Defendants
Rogan or Minniefield with any of the constitutional or statutory violations he alleges.
In fact, Plaintiff does not mention either of these Defendants in the body of his
complaint at all.

As such, Plaintiff’s claims against Defendants Rogan and

Minniefield should be dismissed. Douglas v. Yates, 535 F.3d 1316, 1321-22 (11th
Cir. 2008) (dismissal of defendants appropriate where plaintiff failed to allege facts
associating defendants with a particular constitutional violation).
B.

Claims for Injunctive Relief

Plaintiff raises claims for injunctive relief.

Compl. 11.

As noted above,

however, Plaintiff has been released from Bostick, and he does not allege that he is
likely to be returned to that facility. “The general rule is that a prisoner’s transfer
or release from a jail moots his individual claim for declaratory and injunctive relief.”
See, e.g., McKinnon v. Talladega Cnty., Ala., 745 F.2d 1360, 1363 (11th Cir. 1984).
5

To the extent Plaintiff is seeking injunctive relief in this case, his claims are therefore
moot and should be dismissed as such.
C.

Claims against Remaining Defendants
1.

Section 1983

The Court now turns to Plaintiff’s remaining claims against Defendants Leo,
Mitchell, and Bostick itself. Plaintiff first seeks relief pursuant to 42 U.S.C. § 1983.
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, 1582
(11th Cir. 1995).

As noted above, Plaintiff suggests Bostick is privately-owned.

Compl. 5. A private citizen “may be viewed as a state actor under § 1983 ‘[o]nly in
rare circumstances.’” Brown v. Lewis, 361 F. App’x 51, 54 (11th Cir. 2010) (quoting
Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)). The Eleventh Circuit uses
three tests to determine whether a private citizen acts under color of state law for
§ 1983 purposes:
(1) the public function test, which asks whether the private actors were
performing functions “traditionally the exclusive prerogative of the
state;” (2) the state compulsion test, which applies to situations where
the government coerced or significantly encouraged the unconstitutional
actions at issue; and (3) the nexus/joint action test, which applies where
the state and the private party were joint participants in the common
enterprise.
Id. (quoting Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,
1277 (11th Cir. 2003)). “A private party may also be held liable under § 1983 when
6

he conspires with state actors to violate the plaintiff’s constitutional rights.” Id.
In this case, the relationship between Bostick, its employees, and any state
entities, such as the Georgia Department of Corrections or the Georgia State Board
of Pardons and Paroles, is not clear. But courts have found that entities similar to
Bostick are state actors under the “public function” test.

One of these courts

analogized a private residential treatment center for troubled children to a private
prison for purposes of determining whether the center could be a state actor for § 1983
purposes. Lemoine v. New Horizons Ranch & Ctr., Inc., 990 F. Supp. 498, 501-02
(N.D. Tex. 1998). The court observed that the individuals housed in the treatment
center and private prisons are placed there involuntarily by the state, and both types
of facilities provide “24-hour care of people with behavior problems.” Id. at 502. In
both cases, the state pays for residents’ “housing, food, medical, and educational
needs[,]” and “residents are not free to choose their own medical care givers, but are
forced to receive treatment from whomever has a contract with either the private
prison or . . . residential treatment center.” Id. The court reasoned that a private
corporation running a state prison would clearly be considered a state actor “under
the ‘public function’ doctrine.” Id. at 502. And, because the residential treatment
center likewise “assumed the state’s total responsibility for the care of troubled
juveniles” pursuant to an “extensive contractual relationship” with the state, the
center and its contract physician were also state actors. Id. at 502-03 (citing West v.
Atkins, 487 U.S. 42, 50-51 (1988) (physician under contract with state to provide
medical care to inmates acts under color of state law for purposes of § 1983 liability));
7

see also McBryde v. Thomas, No. CV 12-76-H-DLC, 2013 WL 6199177, at *5 (D. Mont.
Nov. 27, 2013) (finding that a “24-hour residential facility under contract with the
State of Montana to house inmates where the inmates/‘family members’ were not free
to leave, were under the 24-hour care and supervision of the staff . . . , were sent to
the facility by the state, and were held on an involuntary basis” was state actor);
Braswell v. Cmty. Sols., Inc., Civil No. 3:11-CV-01043 (JCH), 2013 WL 663621, at *4
(D. Conn. Feb. 4, 2013) (finding residential work-release center operated by non-profit
that contracted with department of corrections was akin to a private prison and
therefore was a state actor); but see, e.g., Moore v. Broady, No. 10-CV-3250 (ENV),
2010 WL 3125008, at *5 (E.D.N.Y. Aug. 6, 2010) (finding transitional housing
provider for parolee was not a state actor where “the provision of transitional housing
to former inmates under parole supervision is not a function that has traditionally
been the exclusive prerogative of the state”).
At this early stage, the allegations in the complaint at least suggest that
Bostick is a state actor under the “public function” test because it provides housing
and medical services to parolees at the direction of the state in a facility that shares
some characteristics of a private prison. Because the complaint plausibly alleges
Bostick is a state actor, its employees may also be considered state actors. Harvey
v. Harvey, 949 F.2d 1127, 1132 n.14 (11th Cir. 1992) (noting that individual
defendants who were employed by a “state-operated medical facility” would
“unquestionably” be state employees).

The Court will therefore analyze the

remaining elements of Plaintiff’s potential § 1983 claims.
8

a.

Inadequate Medical Treatment Claims

Plaintiff first suggests that Defendants did not provide him with adequate
medical care at Bostick. More specifically, Plaintiff alleges he was given the wrong
medications on at least 12 occasions, and he contends he was given Depakote, a
psychotropic drug, at least six times after a doctor discontinued his prescription.
Compl. 9.
Prison officials have an Eighth Amendment duty to provide adequate medical
treatment to the inmates under their care. See Farrow v. West, 320 F.3d 1235, 1243
(11th Cir. 2003). This duty derives from the fact that “[a]n inmate must rely on
prison authorities to treat his medical needs; if the authorities fail to do so, those
needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). But, “[a]lthough
the Supreme Court has found that the Eighth Amendment requires the state to
provide adequate medical care to incarcerated prisoners, that obligation has not been
extended to convicts who are not in custody and therefore free to find treatment on
their own.” Koch v. Wade, No. C 15-03895 BLF (PR), 2016 WL 1381793, at *2 (N.D.
Cal. Apr. 5, 2016) (citation omitted). Thus, the state is not typically required to
provide medical care to its parolees, who are generally not in custody and may seek
outside care. See, e.g., Bennett v. Newsom, No. 23-cv-05905-JSC, 2024 WL 1559997,
at *4 (N.D. Cal. Apr. 9, 2024) (“No authority of which the Court is aware provides the
Eighth or Fourteenth Amendments prohibit deliberate indifference to the medical or
mental health needs of a parolee, as opposed to an inmate awaiting trial or a convicted
prisoner.”).
9

Some courts, however, have recognized an exception to this general rule where
the individual is still under restrictions that prevent him from obtaining outside
medical care. See, e.g., McNair v. Harlem Hosp. Med. Dir., 19-CV-0203 (CM), 2019
WL 2176299, at *2 (S.D.N.Y. May 17, 2019) (collecting cases); Giddings v. Joseph
Coleman Ctr., 473 F. Supp. 2d 617, 623 (E.D. Pa. 2007) (finding that Eighth
Amendment deliberate indifference standard applied to parolee who was confined to
halfway house by state board of pardon and parole and was “completely dependent
on the Center for all of his basic needs”). The Court cannot say at this early stage
whether this case falls within this exception. The nature of Plaintiff’s “confinement”
to Bostick is unclear, and the state may have assumed some duty to provide him with
medical care given that they assigned him to a skilled nursing facility from which he
may not have been free to leave. For purposes of preliminary screening, the Court
will thus assume that Plaintiff’s allegations could give rise to constitutional claims.4
Plaintiff does not identify which individual made the medication errors in this
case; rather, he suggests Defendant Mitchell is liable for these errors because she
failed to properly staff Bostick. Compl. 9. These allegations fail to state a § 1983

The courts that allow a probationer or parolee to raise a claim concerning the adequacy of his
medical care differ as to whether such claims arise under the Eighth or Fourteenth Amendments.
Compare, e.g., Giddings, 473 F. Supp. 2d at 623 (finding that parolee’s “status was akin to that of a
convicted person punished by incarceration” and therefore Eighth Amendment applied) with McCamey
v. Am. Behavioral Health Sys., Inc., No. 2:19-cv-00812-RBL-JRC, 2020 WL 3848051, at *3 (W.D. Wash.
May 20, 2020) (noting that “the law is unclear regarding the standard that applies when a convicted
prisoner is serving community supervision” and applying “more favorable” Fourteenth Amendment
standard). Plaintiff appears to rely on the Eighth Amendment in his complaint, and the Eleventh
Circuit standard for deliberate indifference in the context of a medical claim is the same whether the
claim arises under the Eighth or Fourteenth Amendments. Ireland v. Prummell, 53 F.4th 1274, 1287
n.4 (11th Cir. 2022); Dang ex rel. Dang v. Sheriff, Seminole Cnty. Fla., 871 F.3d 1272, 1279 n.2 (11th
Cir. 2017).
4

10

claim. “A supervisor may be liable for the unconstitutional acts of his subordinates
when he personally participates in those acts or when a causal connection exists
between his actions and the constitutional deprivation.” Christmas v. Nabors, 76
F.4th 1320, 1330 (11th Cir. 2023).

A causal connection can be established if

(1) “a history of widespread abuse puts the responsible supervisor on
notice of the need to correct the alleged deprivation and he fail[ed] to do
so”; (2) “the supervisor’s improper custom or policy le[d] to deliberate
indifference to constitutional rights”; or (3) “facts support an inference
that the supervisor directed the subordinates to act unlawfully or knew
that the subordinates would act unlawfully and failed to stop them from
doing so.”
Hendrix v. Tucker, 535 F. App’x 803, 805 (11th Cir. 2013) (alterations in original).
“The standard by which a supervisor is held liable in her individual capacity for the
actions of a subordinate is extremely rigorous.”

Id. (quoting Doe v Sch. Bd. of

Broward Cnty., 604 F. 3d 1248, 1266 (11th Cir. 2010)).
In this case, though Plaintiff attributes the medication errors to Defendant
Mitchell’s “failure to hire enough staff[,]” Compl. 9, he does not describe a history of
similar medication errors involving other Bostick residents, allege any facts to
support his theory that Defendant Mitchell deliberately and improperly understaffed
the facility, or clearly explain how the alleged understaffing caused the medication
errors. See Piazza v. Jefferson Cnty., 923 F.3d 947, 958 (11th Cir. 2019) (prisoner
failed to state supervisory liability claim where he failed to “point to other instances”
of unconstitutional conduct or allege any facts concerning the policies or customs that
led to constitutional violations); see also Ireland, 53 F.4th at 1291-92 (observing that
a plaintiff cannot rely on a general policy of understaffing but must show that
11

defendant deliberately intended to understaff a facility to establish deliberate
indifference).

Plaintiff similarly fails to allege facts sufficient to show that

Defendant Mitchell directed any individual to act unlawfully or knew someone would
do so and failed to stop them.

Plaintiff therefore fails to allege a colorable

supervisory liability claim against Defendant Mitchell regarding the medication
errors, and any such claims should be dismissed without prejudice.
b.

Forced Medication Claims

Plaintiff also alleges that Defendants Leo and Mitchell forced him to take
Depakote unnecessarily and for the purpose of using the drug as a chemical restraint.
Compl. 6-8. These claims could implicate Plaintiff’s rights under the Eighth and/or
Fourteenth Amendments.

Washington v. Harper, 494 U.S. 210, 221-22 (1990)

(holding that inmate “possesse[d] a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due Process Clause of the
Fourteenth Amendment”); Battle v. Cent. State Hosp., 898 F.2d 126, 129 (11th Cir.
1990) (“[A]llegations of excessive and unnecessary medication administered after the
patient’s objections to the treatment implicate eighth amendment concerns.”). At
this early stage, the Court cannot say that Plaintiff’s claims that Defendants Leo and
Mitchell were giving him unnecessary or excessive psychotropic medication against
his will are frivolous.5 These claims shall proceed for further factual development.

To be clear, the Due Process Clause does not completely prohibit the involuntary administration of
psychotropic drugs. The state may “treat a prison inmate who has a serious mental illness with
antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment
is in the inmate’s medical interest[,]” so long as certain procedural requirements are met.
5

12

c.

Retaliation Claims

Next, Plaintiff alleges Defendants Mitchell and Leo chemically restrained him
in retaliation for filing grievances. Compl. 8. Plaintiff also contends Defendant
Mitchell threatened to revoke his parole if he continued to file grievances. Id. at 10.
These allegations could give rise to First Amendment retaliation claims. To state a
retaliation claim, an inmate generally needs to show that he engaged in protected
conduct; that the prison official’s retaliatory conduct adversely affected the protected
conduct; and a causal connection between the protected conduct and the adverse
action. See, e.g., Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). Plaintiff’s
allegations—when construed liberally and taken as true, as they must be at this
stage—are sufficient to state a retaliation claim against Defendants Mitchell and Leo.
Those claims shall proceed for further factual development.6
d.

FNHRA Claims

Plaintiff also contends Defendants Leo and Mitchell violated the FNHRA.
Compl. 7-8.

The FNHRA “ensures that nursing homes that receive Medicaid

funding respect and protect their residents’ health, safety, and dignity.” Health &

Washington, 494 U.S. at 227-28. In Washington, for example, the United States Supreme Court
upheld a state policy that required the decision to involuntarily medicate a prisoner to be made by a
committee made up of a psychiatrist, a psychologist, and the associate superintendent of the facility.
Id. at 229. The decision was subject to review by the superintendent, and the inmate also had the
right to seek judicial review of the decision in a state court. Id. The Court concluded that such
procedural safeguards were adequate to ensure that the prisoner’s interests were considered and
otherwise met the requirements of due process. See id. at 235.
Plaintiff also briefly mentions that some unknown individual told him he could not attend a
December 2023 or January 2024 medical appointment “in retaliation.” Compl. 7. This allegation is
far too vague to state an actionable retaliation claim. Douglas, 535 F.3d at 1321-22.
6

13

Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 171 (2023). The FNHRA thus
contains “a litany of statutory requirements that Congress laid out for Medicaidparticipant States and ‘nursing facilities.’”

Id. at 181 (quoting 42 U.S.C.

§ 1396a(a)(28)). The United States Supreme Court recently held that some of the
provisions of § 1396r(c) of the FNHRA—the subsection that specifically details the
rights of nursing facility residents—are enforceable via § 1983. Id. at 174 (holding
that rights to be free from unnecessary chemical restraints and to certain protections
concerning transfers and discharges were enforceable under § 1983). At least one
other court has extended the holding of Talevski to encompass other rights contained
in § 1396r(c) of the FNHRA because this subsection “use[s] clear rights-creating
language, speak[s] in terms of the persons benefited, and ha[s] an unmistakable focus
on the benefited class[.]” Est. of Tester ex rel. Tester v. Village at Hamilton Pointe,
LLC, No. 3:24-cv-00005-MPB-CSW, 2024 WL 4433040, at *8 (S.D. Ind. Sept. 20, 2024)
(quoting Talevski, 599 U.S. at 186)).
Plaintiff does not directly cite the portions of the FNHRA he believes are
applicable to his case, but he has alleged facts that suggest at least four of the rights
enumerated in 42 U.S.C. 1396r(c) are implicated by Defendants’ conduct.

First,

Plaintiff clearly alleges that Defendants Mitchell and Leo chemically restrained him
by prescribing him unnecessary psychotropic medication.

This allegation could

implicate Plaintiff’s “right to be free from physical or mental abuse, corporal
punishment, involuntary seclusion, and any physical or chemical restraints imposed
for purposes of discipline or convenience and not required to treat the resident’s
14

medical symptoms.”

42 U.S.C. § 1396r(c)(1)(A)(ii).

Second, Plaintiff contends

Defendant Mitchell refused to allow him to visit with his fiancée on at least two
occasions.

Compl. 10.

Under the FNHRA, nursing facilities must “permit

immediate access to a resident, subject to reasonable restrictions and the resident’s
right to deny or withdraw consent at any time, by others who are visiting with the
consent of the resident[.]”

42 U.S.C. § 1396r(c)(3)(C).

Third, Plaintiff alleges

Defendants Mitchell and Leo retaliated against him for filing grievances about the
conditions at Bostick. Compl. 7, 10. This could implicate Plaintiff’s right under the
FNHRA to “voice grievances with respect to treatment or care that is (or fails to be)
furnished, without discrimination or reprisal for voicing the grievances[.]” 42 U.S.C.
§ 1396r(c)(1)(A)(vi). There are certainly other hurdles these claims must clear as
this litigation progresses; for example, it is not clear whether Bostick meets the
definition of a “nursing facility” under § 1396r. But Plaintiff’s allegations regarding
these three claims—when considered in conjunction with Talevksi and Tester—are
sufficient to raise colorable claims under the FNHRA. See Tester, 2024 WL 4433040,
at *8 (finding claims based on several subsections of § 1396r(c) to be “presumptively
enforceable under Section 1983” and therefore plausible). These three claims shall
therefore proceed for further factual development.
Fourth, Plaintiff contends Defendant Mitchell “uses social security benefits to
furnish her lavish lifestyle by stealing Plaintiff’s funds through her cash cow
manipulation[.]”

Compl. 10.

Section 1396r(c) provides some protection for

residents who deposit their personal funds with nursing facilities.
15

Generally,

nursing facilities “may not require residents to deposit their personal funds with the
facility” and “must hold, safeguard, and account for such personal funds” that are
deposited in accordance with statutory requirements. 42 U.S.C. § 1396r(c)(6)(A),
(B).

But Plaintiff’s allegation that Defendant Mitchell is somehow misusing

residents’ funds is factually unsupported and nothing more than speculation. To the
extent Plaintiff is attempting to bring a claim based on this subsection of the FNHRA,
it should therefore be dismissed without prejudice.7 Twombly, 550 U.S. at 555.
e.

Conditions-of-Confinement Claims

Plaintiff also complains about the conditions of his “confinement” at Bostick.
As previously noted, it is not clear whether Plaintiff was, in fact, confined to the
facility. Assuming he was somehow detained, his allegations that the conditions of
his confinement constitute cruel and unusual punishment could state claims for relief
under the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981).
A conditions-of-confinement claim has both objective and subjective
components. Christmas, 76 F.4th at 1331. To state a claim, an inmate must first
show that the deprivations he suffers are objectively and sufficiently so serious or

If Plaintiff is contending that Defendant Mitchell’s alleged misappropriation of his funds violates
his constitutional due process rights, he likewise fails to state an actionable § 1983 claim. “[A]n
unauthorized intentional deprivation of property by a state employee does not constitute a violation of
the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful
postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).
“Georgia provides a civil cause of action for the wrongful conversion of personal property” which
“constitutes a suitable postdeprivation remedy for procedural due process violations.” Moore v.
McLaughlin, 569 F. App’x 656, 658 (11th Cir. 2014); see also O.C.G.A. § 51-10-1. Plaintiff fails to
allege that he attempted to pursue a civil action based on Defendant Mitchell’s alleged
misappropriation of his funds or that such a remedy is not available to him. He therefore fails to state
a due process claim concerning the loss of his personal property.
7

16

extreme that they amount to a denial of the “minimal civilized measure of life’s
necessities[.]” Thomas v. Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010) (internal
quotation marks and citation omitted).

This standard is only met when the

challenged conditions pose “an unreasonable risk of serious damage” to the inmate’s
future health or safety, or if “society considers the risk that the prisoner complains of
to be so grave that it violates contemporary standards of decency to expose anyone
unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 35-36 (1993). To
meet the subjective standard in a prison conditions case, a plaintiff must show that
the prison official acted with deliberate indifference to a serious risk of harm to the
prisoner. Christmas, 76 F.4th at 1331.8
Plaintiff’s complaint, as pleaded, fails to state an actionable conditions-ofconfinement claim. The only specific allegations he cites for the proposition that the
conditions of his confinement violate the Eighth Amendment are that he was exposed
to the smell of urine and excrement daily because his “roommates [were] not being
changed for days[,]” and he could not receive fresh air in his room because the
windows were unopenable.

Compl. 5, 9.

While exposure to foul odors is

undoubtedly unpleasant, Plaintiff has not alleged facts sufficient to show that this
condition was objectively serious enough to rise to the level of a constitutional

Plaintiff specifically references the Eighth Amendment, but even if his conditions-of-confinement
claims arose under the due process clause of the Fourteenth Amendment, the same standard would
apply. Hamm v. DeKalb Cnty., 774 F.2d 1567, 1574 (11th Cir. 1985) (holding that the “minimum
standard allowed by the due process clause is the same as that allowed by the eighth amendment for
convicted persons” regarding the provision of “basic necessities” during detention).
8

17

violation.9 See, e.g., Sain v. Wood, 512 F.3d 886, 888, 894 (7th Cir. 2008) (holding
that “outdated plumbing[,]” which caused “an unpleasant odor in a cell . . . , along
with the absence of any evidence of serious injury, does not amount to constitutional
deprivation”) overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009);
Williams v. McWilliams, No. 93-3478, 1994 WL 121813, at *1 (5th Cir. Mar. 22, 1994)
(unpublished opinion) (holding that inmate who “was forced to endure the foul odor
caused by an incontinent prisoner in his housing unit” could not state Eighth
Amendment claim absent some allegations that odor “posed a medical or sanitation
hazard”).
Moreover, even if Plaintiff pleaded an objectively serious condition of
confinement, he fails to allege that Defendants were deliberately indifferent to it. In
this Circuit, deliberate indifference requires a plaintiff to “demonstrate that the
defendant acted with ‘subjective recklessness as used in the criminal law,’” by
“show[ing] that the defendant was actually, subjectively aware that his own conduct
caused a substantial risk of serious harm to the plaintiff[.]” Wade v. McDade, 106
F.4th 1251, 1262 (11th Cir. 2024) (en banc) (quoting Farmer, 511 U.S. at 839).
Plaintiff neglects to allege any specific facts that demonstrate that any named
Defendant in this case was “actually, subjectively aware” that the condition of

Allowing an inmate to lie in his own excrement for days could certainly amount to a constitutional
violation, but that is not what Plaintiff is claiming he personally experienced; he alleges only that he
was exposed to foul odors. Cf. Brooks v. Warden, 800 F.3d 1295, 1305 (11th Cir. 2015) (finding Eighth
Amendment violation where inmate had been “forced to lie in direct and extended contact with his
own feces without any ability to clean himself, while confined to a hospital bed in maximum security
constrains”).
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Plaintiff’s room posed a substantial risk of serious harm to Plaintiff. Id. As such,
Plaintiff fails to state an actionable conditions-of-confinement claim, and those claims
should be dismissed without prejudice.
f.

Claims Regarding Searches

Plaintiff next states that Defendant Mitchell authorized safety officers at
Bostick to search residents illegally, but he does not describe the nature of these
searches or seizures or state that he was ever subjected to one. Compl. 9. Without
additional supporting facts, Plaintiff cannot state an actionable claim. Iqbal, 556
U.S. at 678.10 These claims should also be dismissed without prejudice.
g.

Equal Protection Claims

Plaintiff also mentions that Defendants discriminated against him based on
his race. Compl. 10. Such claims may arise under the Equal Protection Clause of
the Fourteenth Amendment, which provides: “No State shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.
“The Equal Protection clause is ‘essentially a direction that all persons similarly
situated should be treated alike[.]’” Eknes-Tucker v. Governor of Ala., 80 F.4th 1205,
1226 (11th Cir. 2023) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985)). Thus, when there is no direct evidence of discrimination, a plaintiff
must generally allege that similarly situated persons—or “comparators”—have been

The Court also notes that Plaintiff may have waived some of his rights as a condition of his parole.
See, e.g., United States v. Stewart, 213 F. App’x 898, 899 (11th Cir. 2007) (holding that warrantless
search of Georgia parolee’s property did not violate Fourth Amendment where condition of parole
required parolee “to submit to a search ‘at any time’ without a warrant”).
10

19

treated differently through state action to state an equal protection claim. Williams
v. Sec’y for Dep’t of Corr., 131 F. App’x 682, 685-86 (11th Cir. 2005); see also Campbell
v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir. 2006).
In this case, the complaint does not set forth any direct evidence of racial
discrimination, which requires “the overt invocation of race by the alleged
discriminator—for instance, the use of a racial slur or racially charged language.”
Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291, 1296 (11th Cir. 2021). Plaintiff
also fails to allege that any similarly situated person was treated differently than
him. Plaintiff therefore fails to state an actionable equal protection claim. See, e.g.,
Williams, 131 F. App’x at 687 (affirming dismissal of equal protection claims where
plaintiff “failed to allege facts showing that any other specific inmate” had been
treated differently than plaintiff).

Any such claims should be dismissed without

prejudice.
h.

Section 1983 Claims against Bostick

Plaintiff also appears to name Bostick itself as a Defendant in this action.
Compl. 4. To the extent Plaintiff intends to raise § 1983 claims against this facility,
those claims should be dismissed without prejudice. Even assuming Bostick is an
entity that contracts with the state to provide services to parolees and is otherwise
subject to suit under § 1983, it cannot be held liable for the constitutional violations
of its employees based on vicarious liability or respondeat superior. Monell v. Dep’t
of Soc. Serv., 436 U.S. 658, 694 (1978). To impose § 1983 liability on a contractor, a
plaintiff must instead establish that the alleged constitutional deprivation occurred
20

as a direct result of the contractor’s official policies or customs. See, e.g., Buckner v.
Toro, 116 F.3d 450, 453 (11th Cir. 1997) (holding that “the Monell policy or custom
requirement applies in suits against private entities performing functions
traditionally within the exclusive prerogative of the state, such as the provision of
medical care to inmates”).

This is because the private contractor in these

circumstances “becomes the functional equivalent of a municipality under § 1983.”
Groover v. Israel, 684 F. App’x 782, 786 (11th Cir. 2017).
In the context of § 1983 liability, “[a] policy is a decision that is officially
adopted by the [entity], or created by an official of such rank that he or she could be
said to be acting on behalf of the [entity],” and “[a] custom is a practice that is so
settled and permanent that it takes on the force of law.” Sewell v. Town of Lake
Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). But a plaintiff cannot “rel[y] on his
experience alone to prove a policy or custom.” Craig v. Floyd Cnty., 643 F.3d 1306,
1312 (11th Cir. 2011). Indeed, “it is established law that proof of a single incident of
unconstitutional activity is not sufficient to demonstrate a policy or custom for
purposes of § 1983 liability.” Ireland, 53 F.4th at 1290. “Rather, a plaintiff must
establish the existence of a pattern of similar violations” or “show that the policy itself
is unconstitutional” to state an actionable claim. Id. (quoting Craig, 643 F.3d at
1310-11).
In this case, Plaintiff’s complaint is based solely upon his own experience at
Bostick; he does not identify any other specific incidents where a particular policy or
custom caused violations of other residents’ constitutional rights. At most, Plaintiff
21

surmises that “90% of all residents at Bostic[k] . . . are on Depakote[.]” Compl. 9.
But Plaintiff has not provided any facts to support this conclusory statement or
explain why this fact—standing alone—evidences an unconstitutional policy or
custom that led to the deprivation of his rights. For example, these individuals may
have been properly prescribed the drug.

Because Plaintiff fails to allege facts

sufficient to show that Bostick maintained any policy or custom that caused the
denial of Plaintiff’s constitutional rights, he fails to state an actionable § 1983 claim.
See, e.g., Ireland, 53 F.4th at 1290 (affirming summary judgment in favor of
contractor where plaintiff “d[id] not attempt to show that . . . purported policies or
customs caused any constitutional violation”); Roy v. Ivy, 53 F.4th 1338, 1351 (11th
Cir. 2022) (affirming summary judgment in favor of contractor where inmate “did not
present evidence of another instance where [the contractor’s] alleged policy or custom
of delaying medical treatment exacerbated an inmate’s medical condition”); Groover,
684 F. App’x at 787 (dismissing § 1983 claims against contractor where plaintiff
“never alleged that [the contractor] had a custom or policy that constituted deliberate
indifference to inmates’ or detainees’ constitutional rights”).

Thus, any § 1983

claims against the entity Bostick should be dismissed without prejudice.
2.

Claims under the ADA and Rehabilitation Act

Finally, Plaintiff alleges that Defendants Leo and Mitchell violated his rights
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and
the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 701, et seq. The Court presumes
Plaintiff bases these claims on his allegations that he was “discriminated against . . .
22

on the basis of his disability[.]” Compl. 10. The only specific example Plaintiff gives
of this type of discrimination is that some exit doors at Bostick, including fire exit
doors, are inaccessible to individuals in wheelchairs. Id. at 5. Because there is no
individual liability under either the ADA or the RA, the Court assumes Plaintiff
intended to raise these claims against Bostick alone. Badillo v. Thorpe, 158 F. App’x
208, 211 (11th Cir. 2005). The Court also assumes that Plaintiff intended to bring
these claims pursuant to either Title II or Title III of the ADA and Section 504 of the
RA.
Title II of the ADA provides that “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. The ADA defines a “public
entity” as “any State or local government” or “any department, agency, special
purpose district, or other instrumentality of a State or States or local government[.]”
42 U.S.C. § 12131(1)(A), (B). State agencies and prisons are “public entities” which
may be sued under Title II of the ADA. United States v. Georgia, 546 U.S. 151, 154
(2006).
Title III of the ADA provides: “No individual shall be discriminated against on
the basis of disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a place of public
accommodation.”

42 U.S.C. § 12182(a).
23

A skilled nursing facility may be

considered a place of public accommodation subject to Title III of the ADA. See, e.g.,
Hubbard v. Twin Oaks Health & Rehab. Ctr., 408 F. Supp. 2d 923, 929 (E.D. Cal.
2004) (finding it “undisputed” that skilled nursing facility was a place of public
accommodation within the meaning of Title III). Plaintiff’s Title III claims that some
doors at Bostick are not wheelchair-accessible appear to fall specifically under
§ 12182(b)(2)(A)(iv), which prohibits “a failure to remove architectural barriers . . . in
existing facilities . . . where such removal is readily achievable[.]”
Section 504 of the RA provides, “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).
When disability discrimination claims are based on the existence of architectural
barriers, “the rights and remedies are exactly the same” whether the case is brought
under the RA or the ADA, and “case law interpreting one statute can be applied to
the other.” Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 288-89 (5th Cir. 2005) (en
banc); see also Cash v. Smith, 231 F.3d 1301, 1305 & n.2 (11th Cir. 2000); Montano v.
Bonnie Brae Convalescent Hosp., Inc., 79 F. Supp. 3d 1120, 1131-32 (C.D. Cal. 2015)
(finding that skilled nursing facility violated ADA, RA, and other laws by failing to
widen doorways to accommodate plaintiff’s wheelchair, among other things).
The Court assumes without deciding that Plaintiff is a qualified individual
with a disability, given his allegation that he requires a wheelchair for mobility. At
this early stage, however, it is impossible to determine whether Bostick is more akin
24

to a prison or a skilled nursing facility and whether it is a public or private entity.11
It is also unclear whether Bostick received federal financial assistance and would
therefore be liable under the RA. The Court does not have to decide these issues,
however, because Plaintiff fails to state an actionable disability discrimination claim
regardless of which provisions apply.
First, to the extent Plaintiff seeks injunctive relief for the alleged violations of
the ADA and the RA, his release from Bostick moots such claims. McKinnon, 745
F.2d at 1363.

Plaintiff’s claims for injunctive relief under the ADA and the RA

should therefore be dismissed without prejudice. And because “injunctive relief is
the only remedy available” for the violation of the architectural barriers provision in
42 U.S.C. § 12182(b)(2)(A)(iv), Plaintiff’s claims under Title III should be dismissed
altogether. Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1231 (11th Cir. 2021)
(citing 42 U.S.C. § 12188) (affirming dismissal of Title III architectural barrier claims
for lack of standing because plaintiff pursued only injunctive relief).
Plaintiff also seeks monetary damages under the ADA and the RA.
Accordingly, Plaintiff “must clear an additional hurdle: he must prove that the entity
that he has sued engaged in intentional discrimination, which requires a showing of
deliberate indifference.” Christmas, 76 F.4th at 1333 (quoting Ingram v. Kubik, 30
F.4th 1241, 1257 (11th Cir. 2022)).

To establish deliberate indifference in this

In the Eleventh Circuit, a private corporation that contracts with a state or local government to
provide prison services is not considered a “public entity” within the meaning of the ADA. Edison v.
Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010) (holding that private prison management corporation
that operated state prison was not a “public entity” for purposes of the ADA).
11

25

context, Plaintiff “must demonstrate that an official who at a minimum has authority
to address the alleged discrimination and to institute corrective measures on the
entity’s behalf had actual knowledge of discrimination in the entity’s programs and
failed adequately to respond.” Silberman v. Miami Dade Trans., 927 F.3d 1123,
1134 (11th Cir. 2019) (cleaned up). Plaintiff fails to clearly allege facts suggesting
that any official with authority at Bostick actually, subjectively knew of the alleged
accessibility issues and failed to take corrective action; he simply states he “observed”
some inaccessible doors.

Compl. 5.

Moreover, Plaintiff does not provide any

specifics regarding why he believes the doors are inaccessible in violation of federal
law. Plaintiff therefore fails to state a claim for damages under Title II of the ADA
or the RA, and these claims must be dismissed without prejudice. Christmas, 76
F.4th at 1333 (affirming dismissal of ADA and RA damages claims where plaintiff
alleged “neither that the Jail knew about [prison official’s] alleged discrimination nor
that it failed to respond adequately”).
IV.

Conclusion

For the foregoing reasons, the following § 1983 claims shall proceed for further
development: (1) claims that Defendants Leo and Mitchell forced Plaintiff to take
unnecessary medication in violation of the Constitution; (2) claims that Defendants
Leo and Mitchell retaliated against Plaintiff in violation of the Constitution and the
FNHRA; (3) claims that Defendants Leo and Mitchell chemically restrained Plaintiff
in violation of the FNHRA; and (4) claims that Defendant Mitchell denied Plaintiff
visitation in violation of the FNHRA.

It is RECOMMENDED, however, that
26

Plaintiff’s remaining claims be DISMISSED without prejudice.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written
objections to these recommendations with the Honorable Tilman E. Self, III, United
States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a
copy of this Recommendation. Any objection is limited in length to TWENTY (20)
PAGES. See M.D. Ga. L.R. 7.4. 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.

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.
ORDER FOR SERVICE
Having found that Plaintiff made colorable claims against Defendants Mitchell
and Leo, it is accordingly ORDERED that service be made on those Defendants and
that they file an Answer, or such other response as may be appropriate under Rule
12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act.

Defendants are

reminded of the duty to avoid unnecessary service expenses, and of the possible
imposition of expenses for failure to waive service pursuant to Rule 4(d).
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall keep the Clerk of this Court
and all opposing attorneys and/or parties advised of their current address. Failure
27

to promptly advise the Clerk of a change of address may result in the dismissal of a
party’s pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff is also advised that he must diligently prosecute his Complaint or face
the possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil
Procedure for failure to prosecute. Defendants are similarly advised that they are
expected to diligently defend all allegations made against them and to file timely
dispositive motions as hereinafter directed. This matter will be set down for trial
when the Court determines that discovery has been completed and that all motions
have been disposed of or the time for filing dispositive motions has passed.
FILING AND SERVICE OF MOTIONS,
PLEADINGS, AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and
correspondence with the Clerk of Court. A party need not serve the opposing party
by mail if the opposing party is represented by counsel. In such cases, any motions,
pleadings, or correspondence shall be served electronically at the time of filing with
the Court.

If any party is not represented by counsel, however, it is the

responsibility of each opposing party to serve copies of all motions, pleadings, and
correspondence upon the unrepresented party and to attach to said original motions,
pleadings, and correspondence filed with the Clerk of Court a certificate of service
indicating who has been served and where (i.e., at what address), when service was
made, and how service was accomplished.
28

DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion
has been filed on behalf of the Defendant from whom discovery is sought by the
Plaintiff.

The Defendants shall not commence discovery until such time as an

answer or dispositive motion has been filed. Once an answer or dispositive motion
has been filed, the parties are authorized to seek discovery from one another as
provided in the Federal Rules of Civil Procedure. The deposition of the Plaintiff, a
state/county prisoner, may be taken at any time during the time period hereinafter
set out provided prior arrangements are made with his custodian.

Plaintiff is

hereby advised that failure to submit to a deposition may result in the
dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil
Procedure.
IT IS HEREBY ORDERED that discovery (including depositions and the
service of written discovery requests) shall be completed within 90 days of the date of
filing of an answer or dispositive motion by the Defendants (whichever comes first)
unless an extension is otherwise granted by the court upon a showing of good cause
therefor or a protective order is sought by the defendant and granted by the court.
This 90-day period shall run separately as to Plaintiff and Defendants beginning on
the date of filing of Defendants’ answer or dispositive motion (whichever comes first).
The scheduling of a trial may be advanced upon notification from the parties that no
further discovery is contemplated or that discovery has been completed prior to the
deadline.
29

Discovery materials shall not be filed with the Clerk of Court.

No party shall

be required to respond to any discovery not directed to him/her or served upon
him/her by the opposing counsel/party.

The undersigned incorporates herein those

parts of the Local Rules imposing the following limitations on discovery:

except

with written permission of the court first obtained, interrogatories may not exceed
TWENTY-FIVE (25) to each party, requests for production of documents and
things under Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN
(10) requests to each party, and requests for admissions under Rule 36 of the
Federal Rules of Civil Procedure may not exceed FIFTEEN (15) requests to each
party.

No party shall be required to respond to any such requests which exceed

these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
The Court shall not consider requests for dismissal of or judgment in this
action, absent the filing of a motion therefor accompanied by a brief/memorandum of
law citing supporting authorities. Dispositive motions should be filed at the earliest
time possible, but in any event no later than one hundred - twenty (120) days from
when the discovery period begins unless otherwise directed by the Court.
SO ORDERED AND RECOMMENDED this 6th day of January, 2025.
s/ Amelia G. Helmick
UNITED STATES MAGISTRATE JUDGE

30