Weeks v. Grady et al

Filing 32

OPINION AND ORDER: The 14 Non-Final Report and Recommendation is ADOPTED IN PART and MODIFIED IN PART. The Court ADOPTS the R&R's recommendation regarding Counts IV and V and DISMISSES those counts. The Court further DISMISSES Counts II and III for the reasons stated herein. The Court finds that Count I should be ALLOWED TO PROCEED pursuant to 28 U.S.C. § 1915A. As Count I is asserted solely against Defendant Grady, all other Defendants are hereby DISMISSED. The Clerk is DIRECTED to resubmit this matter to the Magistrate Judge for further proceedings. Signed by Judge Steven D. Grimberg on 10/29/2020. (jed) Modified on 10/29/2020 to edit text (jed).

Case 1:18-cv-01373-SDG-JKL Document 32 Filed 10/29/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KEVIN MELVIN WEEKS,
Plaintiff,

Civil Action No.
1:18-cv-01373-SDG-JKL

v.
ROBERT C. GRADY, et al.,
Defendants.
OPINION AND ORDER

Presently before the Court is United States Magistrate Judge Larkin’s Report
and Recommendation (R&R) that the instant action be dismissed, except that
Plaintiff’s Fourth Amendment claim for an unreasonable strip search be allowed
to proceed against Defendant Grady for nominal damages [ECF 14]. Plaintiff filed
objections in response to the R&R [Doc. 16]. After careful consideration of the
record and Plaintiff’s objections, the R&R is ADOPTED IN PART and
MODIFIED IN PART.
I.

Background
a.

Factual Background

In his Amended Complaint, Plaintiff Kevin Weeks provides an extensive
narrative regarding several incidents that he alleges occurred when he arrived at

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the Fulton County Jail.1 Relevant to the discussion below, after he and several
other inmates had been subject to a routine strip-search by a Fulton County
deputy, another deputy, Defendant Grady, entered the holding cell and conducted
another strip search of the same group of inmates.2 As described in the R&R,
Grady ordered the six [detainees] to line up shoulder to
shoulder in a group, told them to “[p]ut your things
down, turn and face the wall, and take off your
jumpsuits.” When they were standing naked with their
buttocks to the officers, Grady moved in closer and told
them to “bend over, spread your cheeks, squat, and
cough.” After the [detainees] again complied with
Grady’s instruction, Grady then told them to “[n]ow turn
around and lift your arms, open your mouth, squat again
and then grab your penis and lift your nuts.”
While the [detainees] were complying with this last
instruction Grady made a voyeuristic sound of “umm,”
which, according to Plaintiff, signified Grady’s “sexual
arousal” and caused Officer Jones to exclaim, “What the
hell is this sissy punk shit? Officer M. Jackson already
strip searched them . . . I am not down with this wood
watching; and you have violated these guys and you
violated me. I don’t watch the wood!” Jones began to
walk out of the property room, Grady tried to stop Jones
by putting his hand on Jones’s shoulder, Jones snatched
away from Grady’s grasp and continued to walk out, and
M. Jackson and Fuqua followed. Grady then turned to

1

ECF 12.

2

Id. at 5–7.

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Plaintiff and the other [detainees] and told them to put
their jumpsuits on and return to their cell.3
Weeks alleges that he, along with four of the six detainees subjected to
Grady’s search, filed a grievance with the Jail.4 About two weeks after the incident,
Sergeant Muhammad and another officer met with Weeks to apologize and inform
him that it was being investigated under the Prison Rape Elimination Act (PREA),
34 U.S.C. §§ 30302, et seq.5 Weeks asked for a copy of his grievance and
Muhammad told him that the grievance was administratively closed due to the
PREA investigation, but Weeks would receive the grievance from Officer Streeter.6
Despite numerous efforts, Weeks was unable to receive the grievance until he filed
an open records request with Fulton County.7
Additionally, the Amended Complaint states that Weeks was given access
to a phone when he first arrived at the Jail so that he could notify his wife of his
arrival.8 However, Weeks alleges that was unable to use the phone again until

3

ECF 14, at 3–4.

4

ECF 12, at 8.

5

Id.

6

Id. at 8–9.

7

Id. at 9.

8

Id. at 6.

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about five days later because he was not given a PIN to activate the Jail’s phone
system, despite an unknown officer telling him that he should have received his
PIN when he was processed into the Jail.9 Weeks also asserts that he was not given
underwear while being held in the holding cell or for his court appearance.10
b.

Procedural History

The Amended Complaint asserts the following claims: illegal and
unconstitutional strip search under the Fourth, Eighth, and Fourteenth
Amendments and the Georgia Constitution (Count I); sexual harassment under
the Eighth and Fourteenth Amendments and the Georgia Constitution (Count II);
cruel and unusual punishment under the Eighth and Fourteenth Amendments
and the Georgia Constitution (Count III); deprivation of constitutional rights and
privileges under the Fourth, Eighth, and Fourteenth Amendments and the Georgia
Constitution (Count IV); and, intentional infliction of emotional distress under the
Fourth, Eighth, and Fourteenth Amendments and the Georgia Constitution

9

Id. at 8.

10

Id. at 7.

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(Count V).11 Weeks requests declaratory and equitable relief in addition to $75,000
in nominal damages and $100,000 in punitive damages.12
Pursuant to 28 U.S.C. § 1915A, the magistrate judge conducted a frivolity
review of Weeks’s Amended Complaint. The resulting R&R recommended that
Weeks’s Fourth Amendment claim be allowed to proceed, and the remaining
claims be dismissed. Weeks filed an objection to the R&R’s findings dismissing his
sexual harassment claim and his Eighth Amendment claim. He also objected to the
R&R’s findings limiting the damages he can seek and, relatedly, recommending
the dismissal of his state law claims for emotional injury.
II.

Legal Standard
A district judge has broad discretion to accept, reject, or modify a magistrate

judge’s proposed findings and recommendations. United States v. Raddatz, 447 U.S.
667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any portion of
the R&R that is the subject of a proper objection on a de novo basis and any nonobjected portion under a “clearly erroneous” standard. “Parties filing objections to
a magistrate’s report and recommendation must specifically identify those
findings objected to. Frivolous, conclusive or general objections need not be

11

Id. at 9–15.

12

Id. at 16.

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considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir.
1988).
Under 28 U.S.C. § 1915A, the district court is required to conduct an initial
screening of prisoner complaints and dismiss any complaint that “(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). “A claim is frivolous if and only if 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)). In evaluating whether the complaint
fails to state a claim under § 1915A(b)(1), the Court applies the Fed. R. Civ. P.
12(b)(6) dismissal standard. DiPietro v. Med. Staff at Fulton Cnty. Jail, 805 F. App’x
793, 795 (11th Cir. 2020) (citing Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1280 (11th
Cir. 2001)). “‘Pro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.’” Leal, 254 F.3d at
1280 (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per
curiam)).

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III.

Discussion
a.

Weeks’s Claims

Each count of the Amended Complaint broadly asserts violations of the
Fourth, Eighth, and Fourteenth Amendments without specifying how those
amendments relate to the specific allegations. Nevertheless, given Weeks’s pro se
status, the Court has liberally construed the pleading as asserting the following
bases for relief. Count I and Count III assert Fourth and Eighth Amendment
violations, respectively, based on the strip search. Count II is labeled as a claim for
“sexual harassment” but appears to be identical to the Fourth and Eighth
Amendment claims already asserted under Counts I and III. The first paragraph
of Count IV asserts a violation of the Fourth, Eighth, and Fourteenth Amendments,
while the final paragraph asserts a violation of the Eighth, Ninth, and Fourteenth
Amendments. The allegations in support of this count refer to the strip search, the
grievance process, and the lack of access to underwear and a phone. While
Count V also refers to constitutional amendments, it asserts a state tort claim for
intentional infliction of emotional distress. The Court addresses these counts and
the R&R’s recommendations below.

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i.

Counts I, II, and III

These counts solely rely on the factual allegations regarding the strip search.
While the pleading alleges violations of the Fourth, Eighth, and Fourteenth
Amendments, Weeks fails to assert how the strip search violated the Fourteenth
Amendment.13 Furthermore, the allegations clearly relate to and are controlled by
the Fourth and Eighth Amendments to the exclusion of any potential substantive
due process claim under the Fourteenth Amendment. Albright v. Oliver, 510 U.S.
266, 273 (1994) (“Where a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims.”) (quotations omitted). See
also Clayton v. Walton, No. 1:11-CV-2437-TWT, 2011 WL 6337687, at *3 (N.D. Ga.
Dec. 16, 2011) (finding that “unlawful search and seizure claims fall squarely
within the protections of the Fourth Amendment,” not the Fourteenth

13

The Court recognizes that the Fourth and Eighth Amendments are applicable
to the states by virtue of their incorporation through the Fourteenth
Amendment. Marshall v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1279 n.1
(11th Cir. 2016); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).
However, Weeks appears to assert a separate violation of the Fourteenth
Amendment itself without explaining how that amendment applies to his
allegations. ECF 12, at 9 (“Plaintiff Weeks is entitled to the due process and
equal protection of the under [sic] U.S. Const. amend. IV, VIII and XIV . . . .”).

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Amendment); Burns v. Fugate, No. 3:20-CV-419-J-39MCR, 2020 WL 2198198, at *2
(M.D. Fla. May 6, 2020) (finding the Eighth Amendment is the appropriate
constitutional source for a sexual assault claim, not the Fourteenth Amendment).
The R&R found that Weeks’s Fourth Amendment claim under Count I
should be allowed to proceed as non-frivolous. The Court agrees. See Fortner v.
Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (recognizing that prisoners “retain a
constitutional right to bodily privacy” that must be evaluated “on a case-by-case
basis”); Moton v. Walker, 545 F. App’x 856, 859 (11th Cir. 2013) (finding that strip
searches do not violate prisoners’ Fourth Amendment privacy rights in “as long as
the searches are conducted in a reasonable and non-abusive manner”) (emphasis
added).
The R&R goes on to recommend that Count II be dismissed to the extent it
is premised on PREA because PREA does not provide for a private cause of
action.14 Weeks objected to this recommendation as “downplay[ing]” sexual
misconduct by prison officials.15 His objection mischaracterizes the R&R’s finding.
The R&R could have recommended the dismissal of Count II as duplicative of the
rights already asserted in Counts I and III. Instead, the R&R liberally construed

14

ECF 14, at 11.

15

ECF 16, at 3.

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the pro se pleading as attempting to assert another basis for relief, premised on
PREA. The R&R concluded that PREA does not allow for private causes of action
and, therefore, Weeks’s relief was limited to the constitutional claims already
asserted under the other counts. Weeks’s objection clarifies that Count II is in fact
duplicative of his Fourth and Eighth Amendment counts.16 As such, the Court
need not address whether PREA provides for private causes of action and, instead,
DISMISSES Count II as duplicative of the claims asserted under Counts I and III.
In regards to Count III, the R&R recommended dismissal because it found
that Weeks failed to state an Eighth Amendment claim.17 In support of that
finding, the R&R relied on Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006).18
In Boxer X, the Eleventh Circuit held that “prison officials violate the Eighth
Amendment through ‘the unnecessary and wanton infliction of pain.’” Id.
(quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)). The court then joined other
circuits in “recognizing that severe or repetitive sexual abuse of a prisoner by a

16

Id. at 2 (“In fact, his grievance was founded upon the violation of his Fourth
and Eighth Amendment rights by the hand of an unreasonable and
unwarranted strip search that predicated the act of voyeuristic sexual staff
misconduct. . . . Thus, the sexual misconduct related back to Plaintiff’s first
complaint alleging an illegal strip search.”).

17

ECF 14, at 15–16.

18

Id. (citing Boxer X and other Eleventh Circuit cases applying Boxer X’s holding).

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prison official can violate the Eighth Amendment.” Id. (citations omitted). It
fashioned the applicable inquiry as two-pronged, requiring a subjective finding
that the prison official had a “sufficiently culpable state of mind,” and an objective
finding that the injury was “objectively, sufficiently serious” Id. (citation omitted).
Significantly, the court went on to limit the objective inquiry by stating that, under
Eleventh Circuit precedent, “an injury can be ‘objectively, sufficiently serious’ only
if there is more than a de minimis injury.” Id. (emphasis added).
In a recent opinion, the Eleventh Circuit upheld Boxer X’s holdings
regarding the applicability of the Eighth Amendment to severe or repetitive sexual
abuse by a prison official and the two-pronged inquiry. Sconiers v. Lockhart, 946
F.3d 1256, 1265 (11th Cir. 2020).19 However, it found that the focus in Boxer X on
the type of injury sustained was incorrect based on Wilkins v. Gaddy, 559 U.S. 34
(2010), which was decided four years after Boxer X. Id.
Based on Wilkins, the circuit court emphasized that “‘the core judicial
inquiry’” in sexual assault claims “requires us to consider ‘whether the force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.’” Id. (quoting Wilkins, 559 U.S. at 37). “And dismissing

19

Sconiers was decided after the magistrate judge issued the R&R in this matter.

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a case simply because it fails to satisfy ‘some arbitrary quantity of
injury . . . improperly bypasses the core inquiry.’” Id. at 1267. The court found that
it had “erred in Boxer X by focusing primarily on the injury, as opposed to the
nature of the defendant’s actions, in determining whether the prisoner established
the objective component of his Eighth Amendment claim” and it abrogated the
portion of the opinion that required a more than de minimis injury. Id.
Thus, to the extent the R&R rejects Weeks’s Eighth Amendment claim
because it fails to state more than a de minimis injury, that holding is no longer
consistent with this circuit’s precedent. Nevertheless, the Court finds that Weeks
has failed to present an actionable Eighth Amendment claim. In order to assert an
Eighth Amendment violation, the prisoner still must show that the sexual abuse
was “severe or repetitive.” Id. While Grady’s alleged actions during the seemingly
unnecessary strip search, if true, are disgraceful, this singular incident does not
constitute either severe or repetitive sexual abuse. See In re Eric Watkins Litig.,
No. 20-10408, 2020 WL 5823773, at *3 (11th Cir. Oct. 1, 2020) (holding that
“directing demeaning homosexual comments and gestures at [the prisoner],
though unacceptable and unrelated to any legitimate governmental objective, is
the type of verbal harassment or taunting that is not actionable under the Eighth

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or Fourteenth Amendments”). Therefore, the Court finds that Weeks fails to state
a plausible Eighth Amendment claim and DISMISSES Count III under § 1915A.
i.

Count IV

In regard to Count IV, the R&R found Weeks’s allegations regarding the
grievance process and his lack of access to underwear and to the phones failed to
state a constitutional violation.20 Moreover, it found that Weeks failed to state an
equal protection or due process claim under the Fourteenth Amendment and that
the Ninth Amendment standing alone does not confer any rights beyond those
otherwise provided in the Constitution.21 Weeks did not object to the R&R’s
findings regarding this count. After review, the Court ADOPTS the R&R’s
recommendation and DISMISSES Count IV from this action.
ii.

Damages and Count V

The R&R found that Weeks is limited to nominal damages under the Prison
Litigation Reform Act of 1995 (PLRA). The R&R further found that the PLRA
applies to Weeks’s state law claim and, therefore, recommended the dismissal of
Count V. Weeks’s objection argues that the emotional pain that he suffered as a

20

ECF 14, at 7–10.

21

Id. at 19–23, n.4.

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result of Grady’s actions caused physical damage to his “cerebrum, a physical
organ which is responsible for emotional response.”22
The PLRA provides: “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 (as defined in section 2246 of Title 18).” 42 U.S.C.
§ 1997e(e). The Eleventh Circuit has held that “§ 1997e(e) applies to all federal civil
actions, including constitutional claims brought under § 1983.” Brooks v. Warden,
800 F.3d 1295, 1307 (11th Cir. 2015) (citing Harris v. Garner, 216 F.3d 970, 984–85
(11th Cir. 2000) (en banc)). It has concluded that the statute prohibits prisoners
from bringing claims for compensatory or punitive damages for constitutional
violations absent a physical injury. Id. (citations omitted). Nevertheless, a prisoner
may bring such a claim for nominal damages. Id. at 1307–08.
Weeks has not cited, and this Court is not aware of, any case holding that
an emotional injury that allegedly causes physical damage to the brain satisfies
§ 1997e(e)’s physical injury requirement. Moreover, the statute recognizes that
sexual misconduct, absent a physical injury, may justify the imposition of damages

22

ECF 16, at 7.

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in certain situations. However, it expressly limits those situations to “sexual act[s]”
as defined under 18 U.S.C. § 2246, which requires actual contact between the
aggressor and the victim. 18 U.S.C. § 2246(2). Thus, the plain language of the
statute rejects claims for emotional damage based on the type of sexual misconduct
described here. Weeks’s federal claims are, therefore, limited to nominal
damages.23
Weeks does not object to the R&R’s finding that the PLRA’s physical injury
requirement applies to his state law claims. The Court has reviewed this portion
of the R&R and agrees that the plain language of § 1997e(e) precludes
compensatory and punitive damages for state law claims brought in a “[f]ederal
civil action.” 42 U.S.C. § 1997e(e). See O’Connor v. Carnahan, No. 3:09-cv-224-WSEMT, 2014 WL 293457, at *10 & n.20 (N.D. Fla. Jan. 27, 2014) (holding that
§ 1997e(e) bars compensatory and punitive damages for state law claims and
collecting cases holding the same).

23

Weeks did not object to the R&R’s finding that his requested injunctive relief
is moot since he is no longer at the Fulton County Jail. The Court ADOPTS
that finding.

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The Court finds that Weeks’s remedy for his Fourth Amendment claim is
limited to nominal damages and DISMISSES his state law claim for intentional
infliction of emotional distress (Count V).
b.

Georgia Constitutional Claims

The R&R does not address Weeks’s claims asserted under the Georgia
Constitution. In his Amended Complaint, Weeks cites to Article I, § I, ¶¶ II, XIII,
and XVII of the Georgia Constitution.24 Those paragraphs contain Georgia’s equal
protection, search and seizure, and cruel and unusual punishment clauses,
respectively. Weeks has neither argued that the Georgia Constitution provides for
greater protection than the corresponding clauses in the federal constitution under
these circumstances, nor has the Court found any authority to support such a
position. See Lewis v. Chatham Cnty. Bd. of Comm’rs, 298 Ga. 73, 74 (2015) (“[T]he
Georgia [equal protection] clause is generally ‘coextensive’ with and ‘substantially
equivalent’ to the federal equal protection clause, and . . . we apply them as one.”)
(quoting Democratic Party of Ga., Inc. v. Perdue, 288 Ga. 720, 728 (2011)); Wilson v.
Parker, No. 4:17-CV-0018-HLM, 2017 WL 6601500, at *12 (N.D. Ga. Nov. 20, 2017),

24

Weeks also cites to Ga. Const., Art. I, § I, ¶ XXVIII under Count IV. ECF 12,
at 12–13. However, that section is inapplicable, as it refers to fishing and
hunting. To the extent he meant to assert a violation of ¶ XXIX, Weeks has
failed to assert how that constitutional clause was violated.

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aff’d, 746 F. App’x 860 (11th Cir. 2018) (“Georgia courts analyze Georgia’s state
equivalent of the Fourth Amendment with the same standards as courts analyze
the Fourth Amendment of the Federal Constitution.”) (citations omitted); Minor v.
Barwick, 264 Ga. App. 327, 335 n.12 (2003) (“Since neither the Fourteenth
Amendment nor the Georgia Constitution provides any greater protection than
does the Eighth Amendment, we need not address this argument.”).25
As the Court has found that Weeks’s Fourth Amendment may proceed, it
finds the same with regard to his claim under Article I, § I, ¶ XIII of the Georgia
Constitution. However, his claims asserted under ¶¶ II and XVII are DISMISSED
for the same reasons his related federal constitutional claims were dismissed
above.
IV.

Conclusion
The Court ADOPTS IN PART and MODIFIES IN PART the R&R [ECF 14].

The Court ADOPTS the R&R’s recommendation regarding Counts IV and V and

25

The Georgia Supreme Court has recognized that the Georgia Constitution
provides greater protection against cruel and unusual punishment than the
Eighth Amendment in certain circumstances. See Bradshaw v. State, 284 Ga. 675,
683 n.10 (2008) (citing Fleming v. Zant, 259 Ga. 687, 690 (1989) (recognizing that
cruel and unusual is interpreted by societal standards—national standards for
the Eighth Amendment and Georgia specific standards for ¶ XVII)). However,
the Court finds that under either standard of decency, Grady’s actions do not
qualify as cruel and unusual punishment.

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DISMISSES those counts. The Court further DISMISSES Counts II and III for the
reasons stated above. The Court finds that Count I should be ALLOWED TO
PROCEED pursuant to 28 U.S.C. § 1915A. However, the bases for relief under
Count I are limited to Weeks’s claims for a violation of the Fourth Amendment
and Georgia Constitution, Article I, § I, ¶ XIII. Furthermore, Weeks’s recovery
under that count is limited to nominal damages. As Count I is asserted solely
against Defendant Grady, all other Defendants are hereby DISMISSED.
The Clerk is DIRECTED to resubmit this matter to the Magistrate Judge for
further proceedings.
SO ORDERED this the 29th day of October 2020.

Steven D. Grimberg
United States District Court Judge