MINES v. BARBER et al
ORDER dismissing complaint. Ordered by U.S. District Judge HUGH LAWSON on 5/20/2014. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
GREGORY ALLEN MINES,
: CIVIL NO. 7:13-CV-163-HL
ANTHONY BARBER, et al.,
: PROCEEDINGS UNDER 42 U.S.C. § 1983
Plaintiff Gregory Mines, a prisoner currently confined at the Dooly State
Prison in Unadilla, Georgia, has filed a pro se civil rights complaint under 42
U.S.C. § 1983. Plaintiff’s motion to proceed in forma pauperis was denied, and
Plaintiff paid the full $350.00 filing fee.
Plaintiff was ordered to recast his
complaint, which he did on April 4, 2014.
As explained below,
Plaintiff’s recast claims are now subject to preliminary review.
Standard of Review
Because Plaintiff is a prisoner “seeking redress from a governmental entity
or [an] officer or employee of a governmental entity,” this Court is required to
conduct a preliminary screening of his Complaint. See 28 U.S.C. § 1915A(a). In
so doing, the district court must accept all factual allegations in the Complaint as
Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).
pleadings, like the one in this case, are also “held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Even so, a
district court must dismiss a prisoner complaint after the initial review if: (1) it is
“frivolous, malicious, or fails to state a claim upon which relief may be granted”;
or (2) it “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(e)(2)(B) (requiring the same of
pleadings filed by parties proceeding in forma pauperis).
A claim is frivolous when it appears from the face of the complaint that the
factual allegations are “clearly baseless” or that the legal theories are
“indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A
complaint is thus properly dismissed by the district court sua sponte if it is found
to be “without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346,
1349 (11th Cir. 2001).
When determining whether a complaint fails to state a claim, the Court
must accept as true all facts set forth in the Plaintiff’s complaint and limit its
consideration to the pleadings and exhibits attached thereto. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d
949, 959 (11th Cir. 2009); see also Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir. 2008) (“The standards governing dismissal under Rule 12(b)(6) apply to §
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, (2009) (quoting Twombly, 550 U.S. at 570). The complaint must include
sufficient factual allegations “to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of
action will not do.” Id. Although the complaint must contain factual allegations
that “raise a reasonable expectation that discovery will reveal evidence of” the
plaintiff’s claims, id. at 556, a complaint should not be dismissed “simply because
‘it strikes a savvy judge that actual proof of those facts is improbable,’” Watts v.
Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
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, 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 the 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 pass the standard in § 1915A “shall” be dismissed
on preliminary review).
Plaintiff’s recast complaint alleges violations of his constitutional rights by
Valdosta State Prison (“VSP”) CERT1 Team Officers Anthony Barber, Joseph
Bates, Andre Yancey, Weston, Daniels, David Snyder, as well as VSP Warden
William Danforth, VSP Deputy Warden Calvin Orr, VSP Counselor Pineiro, and
Georgia Department of Corrections Manager of Inmate Affairs Shevondah Fields.
(Recast Compl. 4, 5; Doc. 7.)
Plaintiff has also named as Defendants a John Doe and a Jane Doe, both
presumably VSP officers.
However, fictitious party pleading is not generally
permitted in federal court. A plaintiff may sue an unknown defendant only when
he sufficiently identifies the defendant to allow service of process. Moulds v.
Bullard, 345 F. App’x 387, 390 (11th Cir. 2009); Dean v. Barber, 951 F.2d 1210,
1215-16 (11th Cir. 1992). Plaintiff has not sufficiently identified Defendants John
and Jane Doe so as to allow for service. Accordingly, they are DISMISSED from
In his Complaint, Plaintiff alleges that on December 19, 2011, while he was
incarcerated at the Valdosta State Prison, his cell was searched as part of a
“mass security search for cell phones, drugs, and weapons.” (Recast Compl. 6.)
After returning to his cell following the search, Plaintiff found that his personal
The CERT Team is the Correctional Emergency Response Team which is made up of POST
certified correctional officers who mobilize upon command at Georgia State Prisons to restore
law and order within the facilities and assist all departmental staff with daily organizations and
operations of the facilities. See www.dcor.state.ga.us
property had been ransacked and that his address book containing personal
information, “green dot account numbers,” and “family material” was missing.
(Id.) Because no other cells on his tier were searched, Plaintiff alleges he was
unfairly singled out for this treatment. (Id.) Plaintiff contends the search was for
the sole purpose of confiscating his “green dot”2 account numbers “with malice
and criminal intent.” (Id.) Plaintiff avers that he informed Defendant Yancey
what had occurred.
Defendant Yancey told him that Defendants Bates and
Daniels conducted the search.
Defendant Daniels informed Plaintiff that
Defendant Bates had taken the address book. (Id.)
Plaintiff states that he confronted Defendant Bates who did not deny taking
the address book. Plaintiff states that he was informed by two unnamed fellow
inmates that they saw Defendant Bates with Plaintiff’s address book, “purportedly
downloading [Plaintiff’s] green dot account numbers” into a cell phone. (Id. at 7.)
Plaintiff states that Defendants Snyder, Daniels, Barber, Weston, and Yancey
failed to intervene to prevent the theft.
Plaintiff alleges that he contacted the Green Dot Corporation wherein he
learned that his green dot accounts had been converted to private Pay-Pal
accounts on December 19, 2011, between 12:00 p.m. and 12:36 p.m. (Id. at 8.)
In support of his claims that his property had been stolen, Plaintiff asserts that he
was never provided a property receipt as is required under VSP’s Standard
Green Dot cards are reloadable, pre-paid cards that look and work like credit or debit cards. See
Operating Procedure #B06-0002. Plaintiff contends Defendants Snyder, Bates,
Daniels, Barber, Weston, and Yancey have “repeatedly engaged in illegal
seizures and conversions of inmates’ personal green dot account numbers in the
On December 20, 2011, Plaintiff sent Defendant Warden Danforth a letter
explaining what had occurred. (Id. at 9.) Plaintiff then filed an informal grievance
on December 27, 2011, and a formal grievance on January 9, 2012, both of
which were denied. Plaintiff contends the denials violated his due process rights.
Plaintiff then filed an appeal of the denial of his formal grievance to
Commissioner Brian Owens on February 16, 2012, which was also denied.
Plaintiff contends that in denying his appeal, Defendant Shevondah Fields
violated his due process rights when she failed to investigate the facts of the
Plaintiff thus contends his Eighth and Fourteenth Amendment rights were
violated by the Defendants, and further contends the Defendants committed the
torts of conversion and gross negligence. Plaintiff seeks a declaratory judgment
stating that: (1) the harassment of Plaintiff by Defendants Bates, Daniels, Barber,
Weston, and Yancey violated his Eighth and Fourteenth Amendment rights and
constituted a conversion under state law; (2) Defendant Orr’s failure to take
action to curb said harassment violated the Eighth and Fourteenth Amendment
and constituted a conversion under state law; Defendants Pineiro and Danforth’s
actions in conducting and sustaining the grievance procedure violated Plaintiff’s
Fourteenth Amendment due process rights; (4)
Defendant Fields’ actions in
conducting the grievance appeal, and failure to train or supervise the Defendant
Officers violated Plaintiff’s Fourteenth Amendment due process rights. (Id. at
Plaintiff also seeks $100,000 in compensatory damages jointly and
severally from Bates, Daniels, Barber, Weston, Yancey, Snyder, and Orr.
Plaintiff further seeks compensatory damages in the amount of $10,000 against
Defendant Danforth, and $20,000 from Defendant Shields. Lastly, Plaintiff seeks
punitive damages in the amount of $20,000 each against Defendants Bates,
Daniels, Barber, Weston, Yancey, Snyder, and Orr; $10,000 against Defendant
Danforth; and $20,000 against Defendant Shields. (Id. at 14.) Plaintiff makes no
claim for damages against Defendant Pineiro.
Fourteenth Amendment Claims
The Due Process Clause of the Fourteenth Amendment provides that no
state shall “deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. Amend. XIV. A § 1983 civil rights action is not the proper
vehicle to pursue criminal charges related to the theft of Plaintiff’s personal
However, to the extent that Plaintiff has filed the instant action to
pursue a claim that the taking of his property by prison officials violated his right
to procedural due process of law under the Fourteenth Amendment, that claim
will be addressed. “In this circuit, a § 1983 claim alleging a denial of procedural
due process requires proof of three elements: (1) a deprivation of a
constitutionally-protected liberty or property interest; (2) state action; and (3)
constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232
(11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)).
The United States Supreme Court has held that pursuant to the
Parratt/Hudson3 doctrine, “a deprivation of a constitutionally protected property
interest caused by a state employee's random, unauthorized conduct does not
give rise to a § 1983 procedural due process claim, unless the state fails to
provide an adequate postdeprivation remedy.” McClure v. Turner, 481 F. App’x
167, 172 (5th Cir. 2012) (citation omitted). Georgia provides at least two potential
post-deprivation remedies. See O.C.G.A. §§ 51-10-1 through 51-10-6 (providing
cause of action for injuries to property, including conversion); and O.C.G.A. §§
28-5-80 through 28-5-86 (allowing for claims against the state or any of its
agencies). Because Georgia provides Plaintiff with a meaningful post-deprivation
remedy, the alleged taking of Plaintiff’s personal property does not state a claim
for relief under § 1983. Even if Plaintiff were unable to sue the Defendants under
Georgia law, the Court finds that Plaintiff received adequate due process for the
removal of his personal property from his cell because he took advantage of a
separate and adequate post-deprivation remedy—the grievance process—which
he exhausted. See Hudson, 468 U.S. 517, 533, 536 n. 15 (1984) (finding that
unauthorized destruction of property by state employee requires post-deprivation
Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part on
other grounds by Daniels v. Williams, 474 U.S. 327, 330–31 (1986).
remedy which may include a prison grievance procedure).
Thus, all claims
alleging a Fourteenth Amendment violation against Defendants Bates, Daniels,
Barber, Weston, Yancey, Snyder, Orr, Pineiro, Danforth and Shields must be
Eighth Amendment Claims
An Eighth Amendment claim is asserted when a plaintiff challenges the
conditions of his confinement.
U.S.C.A. Const. Amend VIII.
Amendment, which is applicable to the states through the Fourteenth
Amendment, requires that a plaintiff prove that the conditions complained of
constitute “cruel and unusual punishment.” Dixon v. Toole, 225 F. App’x 797,
798 (11th Cir. 2007) (citations omitted). The Eighth Amendment “governs the
treatment a prisoner receives in prison and the conditions under which he is
Farrow v. West, 320 F.2d 1235, 1242 (11th Cir. 2003) (internal
quotation marks and citation omitted).
“However, [n]ot every governmental
action affecting the interests or well-being of a prisoner is subject to Eighth
Id. (internal quotation marks and citation omitted)
(alteration in original).
To the extent that Plaintiff has asserted an Eighth Amendment claim
against any of the Defendants, his claims must fail. “[S]tates violate the eighth
amendment if they are deliberately indifferent to a prisoner's serious medical
needs or if they fail to provide prisoners with reasonably adequate food, clothing,
shelter, and sanitation.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1572 (11th Cir.
1985). The allegations raised by Plaintiff fail to allege that any of the Defendants
were deliberately indifferent to his medical needs, and further fail to state a claim
that he was denied adequate food, clothing, or shelter. Plaintiff has failed to
state a colorable Eighth Amendment claim in this case, and any allegations of an
Eighth Amendment violation are hereby DISMISSED.
State Law Claims
To the extent that Plaintiff has alleged any state law conversion or
negligence claims against any or all of the Defendants, his claims are dismissed.
District courts “have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. District
courts have supplemental jurisdiction over all other claims, including state law
claims, “that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United
States Constitution.” 28 U.S.C. § 1367(a). However, a district court “may decline
to exercise supplemental jurisdiction over a claim under [28 U.S.C. § 1367(a) ] if .
. . the district court has dismissed all claims over which it has original
jurisdiction[.]” 28 U.S.C. § 1367(c)(3).
As discussed above, Plaintiff’s federal claims lack merit. Because “[b]oth
comity and economy are served when issues of state law are resolved by state
courts,” the Court declines to exercise supplemental jurisdiction over any
potential state law claims and dismiss those claims without prejudice. Rowe v.
City of Fort Lauderdale, 279 F.3d 1271, 1288 (11th Cir. 2002) (“The argument for
dismissing the state law claims in order to allow state courts to resolve issues of
state law is even stronger when the federal law claims have been dismissed prior
to trial.”). Therefore, conversion and negligence claims raised in Plaintiff’s
Complaint against the Defendants are DISMISSED.
Having conducted a preliminary review of Plaintiff’s complaint as required
by 29 U.S.C. § 1915, the Court finds that Plaintiff’s Complaint and all claims for
damages against the Defendants should be DISMISSED. For purposes of the
three strikes provision of the Prison Litigation Reform Act (PLRA), the Court
determines that its decision in this case is a strike against Plaintiff. See 28 U.S.C.
§ 1915(g) (Counting as strikes any action or appeal in federal court “that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted.”).
SO ORDERED, this 20th day of May, 2014.
UNITED STATES DISTRICT JUDGE
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