Bayse v. Holt et al
Filing
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OPINION AND ORDER adopting Magistrate Judge Linda T. Walker's Non-Final Report and Recommendation 6 and overruling Plaintiff's Objections to the Magistrate Judge's Non-Final Report and Recommendation 8 . Plaintiff's retaliation claims against Defendants Warden A. Holt and Arthur Chaney are allowed to proceed. Plaintiff's claim of deliberate indifference to medical needs be dismissed without prejudice and Plaintiff's remaining claims and all remaining Defendants are dismissed. Signed by Judge William S. Duffey, Jr on 9/7/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROBERT D. BAYSE,
Plaintiff,
v.
1:17-cv-962-WSD-LTW
WARDEN A. HOLT et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s NonFinal Report and Recommendation [6] (“R&R”), recommending under 28 U.S.C.
§ 1915A that Plaintiff’s retaliation claims against Defendants Warden A. Holt and
Arthur Chaney be allowed to proceed, Plaintiff’s claim of deliberate indifference to
medical needs be dismissed without prejudice, and all of Plaintiff’s remaining
claims and all Defendants be dismissed. Also before the Court are Plaintiff Robert
D. Bayse’s1 (“Plaintiff”) Objections [8] to the R&R.
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Because Plaintiff alleges that she is a transgender female and uses female
pronouns to refer to herself, the Court will use those pronouns as well.
I.
BACKGROUND
On March 15, 2017, Plaintiff, a state prisoner, filed her pro se Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983 [1] (“Complaint”), alleging violations of
her constitutional rights by a number of correctional officers and the prison warden
while she was confined at Phillips State Prison (“Phillips”). Plaintiff alleges that
(1) Defendants Sanford and Dozier exercised deliberate indifference toward her
medical need for gender reassignment surgery for her gender dysphoria; (2)
Defendant B. Brown engaged in derogatory statements and harmful actions toward
Plaintiff amounting to excessive force, harassment, and retaliation; (3) Defendants
Holt and Chaney retaliated against her for complaining to Phillips officials and
external agencies about their mistreatment of her; and (4) Defendant Holt generally
failed to protect her in 2016 from Defendant Chaney and others. (Compl. at 3-4,
6-11).
On May 25, 2017, the Magistrate Judge screened Plaintiff’s Complaint and
issued her R&R, recommending that this action be allowed to proceed in part and
dismissed in part under 28 U.S.C. § 1915A. On June 19, 2017, Plaintiff filed her
Objections to the R&R. While difficult to evaluate, the Court concludes that
Plaintiff reiterates, as objections, (1) her claim for deliberate indifference relating
to her need for gender reassignment surgery (Obj. at 2-5); and (2) her claims
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against Defendant B. Brown for his alleged derogatory statements and harmful
actions (Obj. at 1-2). The Court considers these as Plaintiff’s objections to the
Magistrate Judge’s findings and recommendations on Plaintiff’s deliberate
indifference and derogatory statements and harmful actions claims.
II.
LEGAL STANDARDS
A.
Frivolity Review Under 28 U.S.C. § 1915A
A federal court must screen “a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint if it
is “frivolous, malicious, or fails to state a claim upon which relief may be granted,”
or if it “seeks monetary relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A(b). A claim is frivolous, and must be dismissed, where it
“lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091,
1100 (11th Cir. 2008).
Plaintiff filed her Complaint pro se. “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro se plaintiff must
comply with the threshold requirements of the Federal Rules of Civil Procedure.
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See Beckwith v. Bellsouth Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir.
2005). “Even though a pro se complaint should be construed liberally, a pro se
complaint still must state a claim upon which the Court can grant relief.”
Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007). “[A] district court does
not have license to rewrite a deficient pleading.” Osahar v. U.S. Postal Serv.,
297 F. App’x 863, 864 (11th Cir. 2008).
B.
Magistrate Judge’s Report and Recommendation
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). Where no party has objected to the
report and recommendation, the Court conducts only a plain error review of the
record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
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III.
DISCUSSION
The Court first considers, on de novo review, whether (1) Plaintiff’s
deliberate indifference claim or (2) Plaintiff’s claims relating to Defendant
B. Brown’s various alleged derogatory statements and harmful actions are viable
claims under 42 U.S.C. § 1983. The Court, in the absence of an objection, reviews
the remainder of the R&R for plain error.
A.
Deliberate Indifference Claim
Plaintiff first argues that Defendants Sanford and Dozier acted with
deliberate indifference toward her request for gender reassignment surgery for her
gender dysphoria. (Compl. at 7-8, 10). Upon arrival at Phillips in June 2016,
Plaintiff requested treatment for gender dysphoria. (Id.). Defendant Sanford, a
prison physician, refused to see her, and physician Weaver, Phillips’ clinical
director, told her that no one at Phillips knew about treating gender dysphoria.
(Id). Plaintiff alleges Defendant Dozier has not responded to any of her grievance
filings, including those demanding treatment for gender dysphoria. (Compl. at 8).
Plaintiff alleges that she has been repeatedly told that gender reassignment surgery
is not permitted under Georgia Department of Corrections (“GA DOC”) policy.
(Obj. at 3). Plaintiff is receiving hormone therapy. (Compl. at 8). Plaintiff claims
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she has attempted self-castration twice as a result of Defendants’ alleged deliberate
indifference to her gender dysphoria treatment requests. (Obj. at 4).
To state a claim for deliberate indifference to a serious medical need, a
prisoner must first allege facts establishing a serious medical need. In this Circuit,
a serious medical need is considered “one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention. Melton v. Abston, 841 F.3d
1207, 1221-22 (11th Cir. 2016) (internal citation and quotation marks omitted). In
other words, the serious medical need “must be one that, if left unattended, poses a
substantial risk of serious harm.” Id. To allege deliberate indifference to a serious
medical need, Plaintiff must prove: “(1) subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.”
Id. at 1223.
Plaintiff fails to sufficiently allege a claim of deliberate indifference to a
serious medical need. As she admits in her Complaint, Plaintiff is currently
receiving care in the form of hormone therapy for her alleged gender dysphoria.
(Compl. at 8). Plaintiff thus cannot claim Defendants Sanford or Dozier, or any
other jail official, have acted with deliberate indifference to that need. Simply
because Plaintiff would prefer another course of treatment—one which is not
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alleged to be medically necessary—does not mean that Defendants have acted with
deliberate indifference toward Plaintiff’s medical needs.
The Court, upon de novo review, overrules Plaintiff’s objection to the
Magistrate Judge’s findings and recommendation to dismiss, without prejudice,
Plaintiff’s claim of deliberate indifference to her medical needs.
B.
Claims Against Defendant B. Brown
Plaintiff next argues that Defendant B. Brown’s alleged derogatory
comments, tightening of handcuffs, and forcible removal and disposal of Plaintiff’s
toe rings and anklet amounted to harassment, excessive force, and retaliation.
On June 14, 2016, Plaintiff was transferred to Phillips. (Compl. at 3). Upon
arrival, Plaintiff informed Defendant B. Brown that she was a transgender female.
(Id.). While filling out a witness statement form, Defendant B. Brown approached
Plaintiff and informed those around her that Plaintiff was in fact a man. (Compl. at
4). While taking Plaintiff to her housing unit, Defendant B. Brown and another
officer continued to tell Plaintiff that she was a man because she had a penis and
called her “faggot.” (Id.). Plaintiff allegedly filed a Prison Rape Elimination Act
(“PREA”) complaint the same day regarding Defendant B. Brown’s derogatory
statements. (Id.). On June 16, 2016, Defendant B. Brown purportedly placed
handcuffs on Plaintiff “so tightly that Plaintiff’s hands started to hurt” while being
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escorted from her cell to the intake department. (Compl. at 4, 6). On
September 12, 2016, while Plaintiff was being moved to another cell, Defendant
B. Brown allegedly forcibly removed Plaintiff’s toe rings and anklet and flushed
them down the toilet. (Compl. at 6).
First, Plaintiff’s claim relating to Defendant B. Brown’s derogatory
statements is not viable under § 1983 because verbal, non-physical harassment is
not actionable under § 1983. See 42 U.S.C. § 1997e(e) (“No Federal civil action
may be brought by a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual act.”); see also, Edwards
v. Gilbert, 867 F.2d 1271, 1273 n.1 (11th Cir. 1989) (“[A] petitioner must allege
more than that he has been subjected to verbal taunts . . . [h]owever distressing in
order to make a claim that jailers have . . . deprived the petitioner of his
constitutional rights.”); Balark v. Cobb County Adult Detention Center,
No. 1:13-cv-617-TWT, 2013 WL 2445208, at *3 (N.D. Ga. June 5, 2013)
(adopting Magistrate’s recommendation to dismiss complaint where plaintiff failed
to allege physical injury or a sexual act in connection with his mental and
emotional injuries). Because Plaintiff does not allege any physical injury or sexual
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act in connection with the derogatory comments made by Defendant B. Brown, her
derogatory comments claim is dismissed pursuant to 28 U.S.C. § 1915A.
Second, Plaintiff’s claim relating to harmful handcuffing is not viable under
§ 1983. This Circuit has held that painful handcuffing, alone, does not constitute
excessive force. See Rodriguez v. Farrell, 280 F.3d 1341, 1351-52 (11th Cir.
2002); Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (“From the foregoing
cases, we conclude this Circuit has established the principle that the application of
de minimis force, without more, will not support a claim for excessive force in
violation of the Fourth Amendment.”); Gold v. City of Miami, 121 F.3d 1442,
1446-47 (11th Cir. 1997) (holding handcuffing was not unlawful use of force
where the plaintiff “experienced pain from the handcuffs for roughly twenty
minutes and [] suffered only skin abrasions for which he did not seek medical
treatment”). Plaintiff’s assertion that her hands hurt from the handcuffs, without
more, is insufficient to establish a claim for excessive force, and it is thus
dismissed pursuant to 28 U.S.C. § 1915A.
Finally, Plaintiff’s allegation relating to Defendant B. Brown’s forcible
removal and disposal of her toe rings and anklet is insufficient to allege a § 1983
claim. The intentional deprivation of an individual’s personal property is not
actionable under § 1983 if a meaningful post-deprivation remedy is available under
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state law. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Mines v. Barber, 601
Fed. App’x 838, 840 (11th Cir. 2015) (“We have long explained that seizure of an
individual’s property does not give rise under § 1983 ‘if a meaningful postdeprivation remedy for the loss is available.’”) (quoting Lindsey v. Storey, 936
F.2d 554, 561 (11th Cir. 1991)). Plaintiff can pursue recourse by asserting an
action under O.C.G.A. §§ 51-10-1 through 51-10-6 for loss of her property. (“The
owner of personalty is entitled to its possession. Any deprivation of such
possession is a tort for which an action lies.”). Plaintiff’s allegation relating to the
alleged forcible removal and disposal of her toe rings and anklet is dismissed
pursuant to 28 U.S.C. § 1915A.
To the extent Plaintiff argues that Defendant B. Brown’s actions constituted
retaliation for engaging in protected speech, she fails to state a viable claim. To
state such a claim, Plaintiff must allege facts plausibly showing that “(1) [she]
engaged in constitutionally protected conduct; (2) the defendant’s retaliatory act
adversely affected the protected conduct; and (3) there is a causal connection
between the retaliatory act and the adverse effect on the conduct.” Smith v.
Florida Dep’t of Correction, 713 F.3d 1059, 1063 (11th Cir. 2013); see also, Smith
v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). The Court is not persuaded that
Plaintiff’s alleged painful handcuffing or alleged forcible removal of her toe rings
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and anklet caused her to suffer an adverse action such that it would deter a person
of ordinary firmness from engaging in protected speech or action.
The Court adopts the Magistrate Judge’s recommendation to dismiss
Plaintiff’s claims against Defendant B. Brown under 28 U.S.C. § 1915A.
C.
Portions of the R&R to Which An Objection Not Asserted
Plaintiff does not object to the remainder of the R&R, and the Court reviews
the remainder of the R&R for plain error. See Slay, 714 F.2d at 1095.
Plaintiff’s remaining claims relate to Defendants Holt and Chaney’s alleged
retaliation against Plaintiff for engaging in protected speech and Defendant Holt’s
general failure to protect Plaintiff in 2016 from Defendant Chaney and others.
(Compl. at 8-10).
The Magistrate Judge found that Plaintiff’s claim against Defendants Holt
and Chaney for alleged retaliation should be allowed to proceed. The Magistrate
Judge concluded that removal of Plaintiff’s legal materials and means for writing
complaints, disposal of those items, requiring Plaintiff to write any complaints in
the presence of a counselor and get approval prior to sending them, and prohibiting
Plaintiff from using the phone to call the PREA hotline constituted adverse acts
that would deter a prisoner of ordinary firmness from making the complaints
Plaintiff was seeking to make. (R&R at 8). The Magistrate Judge also concluded
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there was a causal connection between this conduct and Plaintiff’s speech.
(R&R at 9). The Court finds no plain error in this finding and recommendation,
and Plaintiff’s complaint as to the alleged retaliation by Defendants Holt and
Chaney is allowed to proceed. See Slay, 714 F.2d at 1095.
The Magistrate Judge also found that “Plaintiff’s general complaint that
Defendant Holt failed to protect her in 2016 from Defendant Chaney and others
with whom she had trouble five years earlier [did] not state a viable claim.”
(R&R at 10). The Magistrate Judge concluded Plaintiff failed to sufficiently allege
that “Holt knew of a substantial risk of harm to Plaintiff’s safety from any Phillips
official.” (R&R at 11). The Magistrate Judge further concluded that even if Holt
was aware, Plaintiff’s allegations failed to support a “plausible finding that
Plaintiff faced a substantial risk of harm upon her return to Phillips in 2016, as
opposed to name-calling and verbal harassment.” (R&R at 11). The Court finds
no plain error in this conclusion, and agrees with the Magistrate Judge’s
recommendation that Plaintiff’s claim relating to Defendant Holt’s failure to
protect be dismissed under 28 U.S.C. § 1915A.
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IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Non-
Final Report and Recommendation [6] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Objections to the Magistrate
Judge’s Non-Final Report and Recommendation [8] are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s retaliation claims against
Defendants Warden A. Holt and Arthur Chaney be ALLOWED TO PROCEED.
IT IS FURTHER ORDERED that Plaintiff’s claim of deliberate
indifference to medical needs be DISMISSED WITHOUT PREJUDICE and that
Plaintiff’s remaining claims and all remaining Defendants be DISMISSED.
SO ORDERED this 7th day of September, 2017.
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