PARKS v. SPEARS et al

Filing 17

ORDER of instruction to the plaintiff and directing plaintiff's custodian to deduct $2.00 from Parks' account and remit to the Clerk of Court when enough additional payments are added to reach $10.00. The custodian shall also set aside 20 percent of all future deposits to the account, then forward those funds to the Clerk each time the set aside amount reaches $10.00, until the balance of the Court's $350.00 filing fee has been paid in full. Signed by Magistrate Judge G. R. Smith on 1/19/12. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
KENNETH PARKS,
Plaintiff,

MIM

RONALD W SPEARS,
Defendants.

et at.,

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Case No. CV411-221

[I) 1 i] DI
Proceeding pro se and in forma pauperis UP), inmate Kenneth
Parks brings this 42 U.S.C. § 1983, failure-to-protect case against his
warden and others, including the inmate who assaulted him. Doe. 1 at 35; see also

doe. 1-2 ("Notice of Intent" document in which he names his

"counselor" and "unit manager" as captioned defendants and explains,
conclusorily, that the defendants violated his constitutional rights and
"are clearly the proximate cause for injury. . . .").' He seeks damages and
Because the Court must construe a pro se plaintiff's filings liberally, Smith v.
United States, 420 F. App'x 944, 945 (11th Cir. 2011), it will consider Parks' claims as
spread over various documents, including his "Notice of Intent." doe. 1-2.
Nevertheless, he must still comply with procedural pleading requirements. Moton v.
Cowart, 631 F.3d 1337, 1341 n. 2 (11th Cir. 2011).

injunctive relief -- to ensure his safety and proper medical care.' Id. at 4.
Plaintiff's complaint invokes the Eighth Amendment's' baseline:
Prison officials "must provide humane conditions of confinement;
[they] must ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must 'take reasonable measures to
guarantee the safety of the inmates.' "Farmer v. Brennan, 511 U.S.
825, 832, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Hudson
v. Palmer, 468 U.S. 517 2 526-27, 104 S. Ct. 3194, 82 L. Ed. 2d 393
(1984)). "Prison officials have a duty to protect prisoners from
violence at the hands of other prisoners." Carter v. Galloway, 352
Since he has completed his IFP paperwork, docs. 12 & 13, the Court will now
screen his case under 28 U.S.C. § 1915(e)(2)(B)(ii), which allows a district court to
sua sponte dismiss a claim of a plaintiff proceeding in forma pauperis for failure to
state a claim before service of process. The Court also proceeds under 28 U.S.C. §
1915A (courts must identify "cognizable claims" filed by prisoners or other detainees
and dismiss claims which are frivolous, malicious, fail to state a claim for relief, or
seek monetary relief from a defendant immune from such relief) and 42 U.S.C. §
1997e(c)(2) (allowing dismissal on the same four standards provided by § 1915A as to
any prisoner suit brought "with respect to prison conditions").
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The Court applies the Fed. R. Civ. P. 12(b)(6) standards here. Leal v. Ga. Dep't of
Corrs., 254 F.3d 1276, 1278-79 (11th Cir. 2001). Allegations in the complaint are thus
viewed as true and construed in the light most favorable to the plaintiff. Bumpus V.
Watts, 2011 WL 4436591 at * 3 n. 1 (11th Cir. Sep. 26, 2011). But conclusory
allegations fail. Ashcroft v. Iqbal, 556 U.S. -' 129 S.Ct. 1937, 1951 (2009)
(discussing a 12(b)(6) dismissal). "[T]he pleading standard [Fed. R. Civ. P.] 8
announces does not require 'detailed factual allegations,' but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation." Id., 129 S.Ct. at
1949 (citations omitted); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(but pro se pleadings are still construed liberally after Iqbal).
Whether a plaintiff like Parks is a pretrial detainee (in which case the Due Process
Clause applies) or a convicted prisoner (Eighth Amendment applies), the standard is
the same: deliberate indifference. Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th
Cir. 1994); Hamm v. DeKaib County, 774 F.2d 1567, 1574 (11th Cir. 1985) ("in regard
to providing pretrial detainees with such basic necessities as ... medical care[,J the
minimum standard allowed by the due process clause is the same as that allowed by
the eighth amendment for convicted persons"). Hence, Eighth Amendment
jurisprudence applies here.
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F.3d 1346, 1349 (11th Cir. 2003) (per curiam) (quotations and
alterations omitted).
Moulds v. Bullard, 345 F. App'x 387, 391 (11th Cir. 2009).
But he has not pled enough. He cannot simply list the names of
everyone he thinks was in some way involved with the incident and place
the burden on them to show their non-involvement. Instead, he must
plead facts showing, for example,
that he endured conditions "posing a substantial risk of serious
harm." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994). Additionally, [each] correctional officer who is
alleged to violate[d] the Eighth Amendment must have
demonstrated "deliberate indifference." Id. at 835. Prison officials
exhibit deliberate indifference when they know of, and disregard,
an excessive risk to the inmate's safety. Id. Therefore, negligence,
or a lack of due care under the circumstances, is insufficient to
support a claim that the defendants failed to protect the prisoner.
Davidson v. Cannon, 474 U.S. 344, 347, 106 S. Ct. 668, 88 L.Ed.2d
677 (1986). An officer has a duty to take reasonable steps to
prevent a victim from another officer's use of excessive force, but
"an officer is only liable if there is a realistic and reasonable
opportunity to intervene." Smith v. Mensinger, 293 F.3d 641, 651
(3d Cir. 2002).
Jones v. Luzerne County Corr. Facility, 2010 WL 3338835 at *5 (M.D. Pa.
Aug. 23, 2010). As noted in another failure-to-protect case, where an
inmate alleged that a fellow inmate smashed his face in with a baseball
bat left unsecured by prison staff:
Pointing to people in charge and insisting that that alone made
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them liable (hence, a negligence theory) was not enough. Thus,
[plaintiff] was required to plead facts showing more than a
defendant's mere knowledge that, for example, the unsecured
baseball bats here were tantamount to a match about to be lit
inside a powder keg. Instead, it was necessary for him to plead facts
showing that the defendant drew the inference "that a substantial
risk of serious harm exists." Johnson v. Smith, 354 F. App'x 516,
517 (2d. Cir. 2009) (cited in Barreto v. County of Suffolk, 2010 WL
5437211 at * 5 (E.D.N.Y. Dec. 22, 2010) (dismissing guard from
failure-to-protect case where plaintiff alleged only that the guard
"was not present at the tier" when he should have been, and that
the "assault could have been prevented if there was a Corrections
officer properly, overseeing the tier"; plaintiff averred only that the
corrections staff were generally aware of his attacker's disciplinary
violations, but otherwise pled no facts to suggest that the defendant
had "any subjective awareness that his absence posed a substantial
risk of serious harm.")).
Brandon v. Williams, 2011 WL 1984619 at * 2 (S.D. Ga. May 19, 2011).
Hence, Parks must plead, for example, that a given official
witnessed an ongoing attack and failed to intervene when presented with
a realistic and reasonable opportunity to do so. He has not. Instead, he
" The case law bears other examples, such as
a history of widespread abuse [that] puts the responsible supervisor on notice
of the need to correct the alleged deprivation, and he fails to do so.
Alternatively, the causal connection may be established when a supervisor's
custom or policy ... result[s] in deliberate indifference to constitutional rights
or when 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.
Harper v. Lawrence Cty, Al., 592 F.3d 1227, 1236 (11th Cir. 2010) (quoting Cottone v.
Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)).

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pleads only that while on a work detail another inmate assaulted him
with a bush ax, seriously cutting his arm and fracturing its bones. Doc. 5
at 5. He then (in a raw, unedited form that confusingly mixes a
protection with a medical-treatment claim) pleads:
[Tihey [i.e., unnamed jail staff members] are clearly trying to
immunize themseif away from the damages that arised on their
work detail. Defendants have clearly showed a deliberate
indifference to a serious medical need and transferring me putting
me at imminent danger of serious irreparable harm and injury.
Defendants are clearly the proximate cause for the plaintiff's
injuries and the severe pain and suffering that the plaintiff is now
suffering now and the in the future. Defendants have clearly
violated a breach, and legal duty to due care.
Doe. 1 at 5.
Every line of plaintiff's "Statement of Claim" reads the same way -long on conclusions and fatally short on supporting, factual allegations.
(Thus, he fails to allege how each defendant showed a deliberate
indifference -- that, for example, a defendant in a position to stop his
attacker simply stood and watched him being attacked.) His allegations
against his jailers thus fail.5

Additionally, he has likely named unreachable defendants, since claims brought
pursuant to § 1983 cannot be based upon theories of vicarious liability or respondeat
superior. Cline v. Tolliver, 434 F. App'x 823, 825 (11th Cir. 2011); Hartley v. Parnell,
193 F.3d 1263, 1269 (11th Cir. 1999).

Plaintiff also states no § 1983 claim against his attacker, since he
has supplied no allegations that his attacker acted under color of state
law during his attack, or conspired with a state actor. 42 U.S.C. § 1983
(offering a remedy for the deprivation of a citizen's constitutional rights
by actors operating under color of state law); see also Am. Fed. of Labor
and Congress of Indus. Organizations v. City of Miami, 637 F.3d 1178,
1191 (11th Cir. 2011) (to prevail on § 1983 conspiracy claim, plaintiff
must show that agreement between two or more people, at least one of
whom is state actor, to violate his constitutional rights resulted in actual
violation of those rights); Miller v. Graham, 2011 WL 5031467 at * 2 (5th
Cir. Oct. 24, 2011).
Parks also complains that after the jail provided him with outside
medical care, the jail's "medical staff, and doctors, [then] failed to render
adequate medical care and treatment. [They flailed to examine the
injuries that the plaintiff received . . . and have clearly showed a
deliberate indifference to the care and treatment [the outside doctor
prescribed]. Defendants have clearly violated my Eighth Amendment
right under color of state law, violating their breach of duty, and there
[sic] legal and constitutional duty to [provide] due care." Doc. 1 at 5

(emphasis added). These allegations also fail because they rest on
conclusions, and not well-pled supporting facts, as threaded through this
circuit's medical-claims standards: a prisoner must (1) "satisfy the
objective component by showing that [he] had a serious medical need";
(2) "satisfy the subjective component by showing that the prison official
acted with deliberate indifference to [his] serious medical need"; and (3)
"show that the injury was caused by the defendant's wrongful conduct."
Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007).

"Deliberate indifference," for that matter, "is not established
where an inmate received care but desired different modes of treatment."
Jones v. Johnson, 2011 WL 5024452 at * 2 (S.D. Ga. Jul. 18, 2011)

(quotes and cite omitted); Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir.
1995). Parks seeks to sue the jail's medical staff based on his difference
of opinion as to what is medically "adequate": he concedes the jail
afforded him treatment; he simply quarrels with the mode and adequacy.
"Where it is shown that an inmate has received significant medical
attention for his complaints and has not been ignored, the federal courts
are reluctant to second guess the medical judgments of those providing
care. A plaintiff does not state a cognizable claim where he simply seeks

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to substitute his judgment as to medical matters for that of the medical
staff." Duff v. Prison Health Servs., 2011 WL 4542507 at * 9 (M.D. Fla.
Sep. 26, 2011) (cite omitted); see also id. at * 8-9 (if at most medical
malpractice is pled then no § 1983 claim is stated); Smith v. Fla. Dept. of
Corr., 375 F. App'x 905, 910 (11th Cir. 2010) (state prisoner's difference
of opinion with prison medical staff over course of treatment following a
broken pelvis was insufficient to state a claim for deliberate indifference
to his medical needs). And, as with his failure-to-protect claims, he
cannot rely on respondeat superior for his medical claims either. Jones,
2011 WL 5024452 at * 2.6
Accordingly, plaintiff Kenneth Parks' Complaint fails under 28
U.S.C. § 1915(e)(2)(B)(i) and (ii). His filings are so bereft of factual detail
that resuscitation via "second-chance" amendment seems improbable.
Cf. Langlois v. Traveler's Ins. Co., 401 F. App'x 425, 426-27 (11th Cir.

2010) (pro se IFP litigant should have been afforded an opportunity to
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See also Duff v. Steub, 378 F. App'x 868, 871 (11th Cir. 2010) (state pretrial
detainee who suffered ongoing urinary problems failed to allege sufficient facts to
establish that state prison's chief health official was deliberately indifferent to
detainee's serious medical needs, and thus health official was not liable under
Fourteenth Amendment on § 1983 deliberate indifference claim; detainee's complaint
did not allege that chief health official personally participated in alleged delay or
denial of detainee's medical treatment, that official had subjective knowledge of risk
of serious harm to detainee and disregarded that risk, or that causal connection
existed between detainee's medical care and official's supervisory actions).

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amend deficiencies prior to dismissal where fewer than 21 days had
passed since she had filed her complaint, defendants had not yet been
served, no responsive pleadings had been filed, there was no risk of
undue prejudice, there was no evidence of plaintiffs undue delay, bad
faith, or dilatory motive, and amendment may not have been futile given
additional documentary evidence attached to her appellate brief).
Nevertheless, the Court will give him a second chance, and he must file
an amended complaint within 21 days of the date this Order is served,
His injunctive relief, default, and summary-judgment motions (which are
clearly frivolous) will be addressed only if he successfully amends his
complaint. Docs. 7, 8, 14 & 15.
Meanwhile, it is time for Parks to pay the piper. Based on his
furnished information, doc. 12 ($10.01 average monthly balance for the
last six months), the Court has determined that he has had funds in his
prison account during the past six months and therefore owes an initial
partial filing fee of $2.00. See 28 U.S.C. § 1915(b)(1) (requiring an initial
fee assessment "when funds exist," under a specific 20 percent formula)
(emphasis added). Plaintiffs custodian (or designee) therefore shall
deduct $2.00 from Parks' account and remit to the Clerk of Court

(payable to the "Clerk of Court") when enough additional payments are
added to reach $10.00. The custodian shall also set aside 20 percent of all
future deposits to the account, then forward those funds to the Clerk
each time the set aside amount reaches $10.00, until the balance of the
Court's $350.00 filing fee has been paid in full.
SO ORDERED this 19th day of January, 2012.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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