HUEY v. DANFORTH et al

Filing 23

ORDER adopting 17 Report and Recommendations; directing service on Defendant OC2Rizer/Anderson. Ordered by Judge Hugh Lawson on 10/29/2012. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
BRUCE WAYNE HUEY,

:
:
Plaintiff
:
:
VS.
:
:
Warden WILLIAM DANFORTH, et. al., :
:
Defendants
:
____________________________________

CIVIL NO. 7:12-CV-0097-HL-TQL

ORDER ON RECOMMENDATION
Plaintiff BRUCE WAYNE HUEY, an inmate currently confined at the Coffee County
Correctional Facility, filed this pro se civil rights action under 42 U.S.C. § 1983. As required by
28 U.S.C. § 1915A, the United States Magistrate Judge conducted a preliminary review of Plaintiff's
Complaint and thereafter recommended the dismissal of certain claims and parties. Plaintiff has
since filed both a timely Objection (ECF No. 21) to the Magistrate Judge’s Recommendation (ECF
No. 17) and an Amended Complaint (ECF No. 22). In both filings, Plaintiff attempts to supplement
and amend his initial Complaint.
The Court has now considered Plaintiff's Objection and conducted a preliminary review of
Plaintiff's Amendment under 28 U.S.C. § 1915A(a). Plaintiff's objections to the Recommendation
are without merit and are thus OVERRULED. Plaintiff's Amended Complaint also fails to state
claims against Defendants William Danforth, Sherman Maine, and Cecilia Linder. These claims,
Plaintiff’s claims against Defendant Calvin Orr, and Plaintiff’s claims for injunctive relief are
accordingly DISMISSED without prejudice. However, in light of his newly added allegations,
Plaintiff will be permitted to go forward with his claim against Defendant “OC2 Rizer/Anderson.”
See Fed. R. Civ. P. 15(a). This Defendant shall be served.

STANDARD OF REVIEW
When conducting a preliminary review under § 1915A, the district 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, like the one in this case, are also “held to a less stringent standard than
pleadings drafted by attorneys” and must be “liberally construed.” Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998). Nonetheless, a district court is still required dismiss a
prisoner complaint after the initial review if the complaint (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. §1915A(b); see also 28 U.S.C. §1915(2)(B) (requiring the
same of prisoners proceeding in forma pauperis).
A complaint fails to state a claim when it does not include “enough factual matter (taken as
true)” to “give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The “factual allegations
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.” Id. In other words, the complaint must allege
“enough facts to raise a reasonable expectation that discovery will reveal evidence” supporting a
claim. Id. “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
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 County, 50 F.3d 1579, 1581 (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) (affirming
court’s dismissal of a ' 1983 complaint because factual allegations were insufficient to support
alleged constitutional violation); see also 28 U.S.C. § 1915A(b) (dictating that a complaint, or any
portion thereof, that does not meet standard in ' 1915A Ashall@ be dismissed).
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STATEMENT AND ANALYSIS OF CLAIMS
Through the present action, Plaintiff Bruce Wayne Huey alleges that officials at Valdosta
State Prison (1) unlawfully interfered with his incoming mail and (2) retaliated against him for
exercising his First Amendment right to free speech. After construing all allegations in his favor,
the United Magistrate Judge Thomas Q. Langstaff found that Plaintiff had sufficiently alleged a
claim against Defendant Cecilia Linder for “regularly and unjustifiably” interfering with the delivery
of his incoming mail. Plaintiff’s Complaint also sufficiently alleged that Defendant Ted Philbin
retaliated against him for filing lawsuits and grievances. These First Amendment claims were
permitted to go forward. It was recommended, however, that all other claims and Defendants be
dismissed.
Plaintiff now objects to a large part of the Recommendation and has filed an Amended
Complaint in an effort to supplement his initial allegations against Defendants OC2 Rizer/Anderson,
Cecilia Linder, William Danforth, and Sherman Maine. Plaintiff does not object to the dismissal
of either his claims against Officer Calvin Orr or his claims for injunctive relief.
A. Amended Claim against Officer Rizer/Anderson
In his original Complaint, Plaintiff failed to make any allegations against Officer
“Rizer/Anderson.” The Magistrate Judge thus correctly recommended that this Defendant be
dismissed. See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (citing Pamel Corp. v. P.R.
Highway Auth., 621 F.2d 33, 36 (1st Cir. 1980). In his Amended Complaint, however, Plaintiff
alleges that Defendant Rizer/Anderson is the officer responsible for the delivery of inmates’
personal mail and the person who intentionally interfered with his receipt of a political newsletter,
“American’s Sovereign Bulletin.” Defendant Rizer/Anderson apparently told Plaintiff that his
newsletter had been “blocked” because she was aware of the material’s contents.
The First Amendment does of course “protect the right to receive and possess newspapers
and similar publications.”

O'Connor v. Carnahan, no. 3:09cv224/WS/EMT, 2012 WL 2201522

at * 15 (N.D. Fla. March 27, 2012) (citing Beard v. Banks, 548 U.S. 521, 543, 126 S.Ct. 2572, 165
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L.Ed.2d 697 (2006) (J. Stevens, dissenting)). “A prisoner retains these rights, balanced against
prison security and administrative concerns.” Id. (citing Turner v. Safley, 482 U.S. 78, 84–93, 107
S.Ct. 2254, 96 L.Ed.2d 64 (1987)).
Here, Defendant Rizer/Anderson may have had legitimate security or administrative reasons
for blocking Plaintiff’s receipt of the newsletter. However, the Complaint, when liberally construed,
alleges that she did not, and at this early stage in the litigation, the Court cannot yet determine how
Defendant will justify or explain the alleged her interference with Plaintiff’s incoming mail.
Therefore, the Court will, in light Plaintiff’s new allegations, allow Plaintiff’s First Amendment
claim against Defendant Rizer/Anderson to go forward.
B. Amended Claims against Defendant William Danforth
Plaintiff’s initial Complaint also named Warden Danforth as a defendant but failed to state
claim against him.

Plaintiff has now added allegations that Warden Danforth violated his

constitutional rights by failing to investigate his complaints and denying his grievance. Plaintiff
further alleges that Warden Danforth violated his rights by ordering his transfer to another prison
after learning of his protected conduct. Neither of these conclusory allegations support a claim.
As explained by the United States Magistrate Judge, a prison warden may not be held liable
for damages based merely on his failure to respond to an inmate’s letter of complaint. See Crowder
v. Lash, 687 F.2d 996, 1005-06 (7th Cir. 1982). Nor may he be held liable based solely on his denial
of a prisoner’s grievance. See Larson v. Meek, 240 Fed. Appx. 777, 780 (10th Cir. 2007) (“ . . .
denial of the grievances alone is insufficient to establish personal participation in the alleged
constitutional violations.”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (finding that
prisoner failed to state a claim where only alleged that defendants denied his administrative
grievances and failed to remedy the unlawful behavior).
Plaintiff’s allegations also fail to show the required causal connection to support a retaliation

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claim against this Defendant. See Jemison v. Wise, 386 F. App'x 961, 964 (11th Cir. 2010). There
is no suggestion of when or how Warden Danforth learned of Plaintiff’s protected conduct or how
his conduct can be linked to his transfer to another prison. Obviously, Warden Danforth cannot be
held liable, under §1983, for the actions of his subordinates under a theory of respondeat superior.
Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004). Furthermore, Plaintiff has no constitutional
right to remain in a particular institution. Meachum v. Fano, 427 U.S. 215, 224-25, 96 S.Ct. 2532,
2538, 49 L.Ed.2d 451 (1976)).
Plaintiff has thus failed to state a claim against Defendant Warden Danforth, and Plaintiff’s
claims will accordingly be DISMISSED without prejudice. 28 U.S.C. § 1915A(b)(1).
C. Claim against Defendant Cecilia Linder
Plaintiff also objects to the United States Magistrate Judge’s recommendation that his First
Amendment “access to courts” claim against Cecilia Linder be dismissed. Again, as explained by
the Magistrate Judge, to succeed on this claim, Plaintiff must allege an “actual injury in the pursuit
of specific types of non-frivolous cases: direct or collateral attacks on sentences and challenges to
conditions of confinement.” Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998).
Plaintiff’s Objection and Amended Complaint still fail to show this type of injury.

Plaintiff’s

objection is thus overruled, and this claim will be DISMISSED without prejudice. 28 U.S.C. §
1915A(b)(1).
F. Amended Claim against Defendant Sherman Maine
Plaintiff’s Amended Complaint likewise fails to state a due process claim against Defendant
Sherman Maine. Plaintiff’s amendments allege that Defendant Maine violated his right to due
process by placing Plaintiff in segregation (even if he was only following an order from his superior)
because Defendant Maine did not allow Plaintiff to be heard or object to the transfer.
Obviously, to state a due process claim, Plaintiff's injuries must be “within the scope of the

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Due Process Clause.” Kirby v. Siegelman, 195 F.3d 1285, 1290 (11th Cir. 1999); Bass v. Perrin, 170
F.3d 1312, 1318 (11th Cir. 1999). The United States Supreme Court has “identified two situations
in which a prisoner can be further deprived of his liberty such that due process is required”: (1)
“where the change in the prisoner's conditions of confinement is so severe that it essentially exceeds
the sentence imposed by the court,” and (2) where “the state has consistently bestowed a certain
benefit to prisoners, usually through statute or administrative policy, and the deprivation of that
benefit ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life.’” Kirby, 195 F.3d at 1290-91 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Neither applies in this case. Indeed, nothing in Plaintiff’s Amended Complaint suggests that
he was deprived of his “liberty” within the meaning of the Fourteenth Amendment when he was
placed in segregation or that he was otherwise entitled to due process. See id; see also Sandin, 515
U.S. at 484 (thirty day sentence in administrative segregation was not an atypical and significant
hardship in the prison setting such that due process was required); Moody v. Daggett, 429 U.S. 78,
88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976) (prison transfers and changes in classification
status do not require due process protections).
Plaintiff’s due process claim against Defendant Sherman Maine will thus be DISMISSED
without prejudice. See id.; 28 U.S.C. § 1915A(b)(1).
CONCLUSION
Pursuant to 28 U.S.C. § 636(b)(1), this Court has thoroughly considered the
Recommendation of the United States Magistrate Judge, Plaintiff’s Objection, and his Amended
Complaint. The Court has made a de novo determination of the portions of the Recommendation
to which Plaintiff objects and has conducted a preliminary review of Plaintiff’s Amended Complaint
as required by 28 U.S.C. § 1915A(a). After careful consideration, the Court accepts and adopts the
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findings and conclusions the United States Magistrate Judge. Based on this and upon the Court’s
own findings, it is hereby ORDERED that Plaintiff’s claims against Defendants Calvin Orr,
William Danforth and Sherman Maine, any “access to courts” claim against Defendant Cecilia
Linder, and Plaintiff’s claims for injunctive relief be DISMISSED without prejudice.1 28 U.S.C.
§ 1915A(b)(1). However, in light of his amended allegations, Plaintiff will be permitted to go
forward with his claims Defendant “OC2 Rizer/Anderson.” See Fed. R. Civ. P. 15(a) (allowing a
party to amend his pleading once as a matter of course within twenty-one days of service).
It is accordingly ORDERED that Defendant “OC2 Rizer/Anderson” be served and that she
file a Waiver of Reply, an Answer, or such other response as may be appropriate under Rule 12 of
the FEDERAL RULES OF CIVIL PROCEDURE, U.S.C. § 1915, and the Prison Litigation Reform Act.
Defendant is also reminded of her duty to avoid unnecessary expenses and of the possible imposition
of expenses for failure to waive service under Rule 4(d).
SO ORDERED, this 29th day of October, 2012.
s/ Hugh Lawson
HUGH LAWSON, JUDGE
UNITED STATES DISTRICT COURT
jlr

1

Washington v. Wigington, No. 1:12–CV–0637–WSD–JFK, 2012 WL 3834844 (N.D. Ga. July 27, 2012)
(“When a pro se plaintiff fails to state a claim and a more carefully drafted complaint might state a claim,
dismissal should be without prejudice.”).

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