Brinson v. Jackson et al

Filing 13

ORDER vacating 10 Report and Recommendations. The Clerk is directed to send the September 5, 2012 Order to the plaintiff and the USM is directed to serve defendant Clarence Jackson. Signed by Magistrate Judge G. R. Smith on 11/5/12. (bcw)

S

UNITED STATES

DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
PATRICK DEANGELO BRINSON,

Plaintiff,
Case No. CV412-105

I,,

CLARENCE JACKSON,
LUCRITIA HILL and
JAMES COOK,
)

Defendants

)

ORDER

The Court's October 4, 2012 Report and Recommendation is
VACATED. Doc. 10. Proceedingpro se and using a form complaint,
inmate Patrick DeAngelo Brinson brought this excessive-force, 42
U.S.C. § 1983 case against his jailers. Doc. 1. He alleges that he was
wrongly suspected of possessing a forbidden cell phone and that prison
official Clarence Jackson "without cause or provocation body slammed me
on the concrete floor[j causing my left pinky finger to become dislocated
and split from the nail to the backside of my hand.... " Id. at 6. He also
sues Lucritia Hill "as the superintendent whom the officers are instructed

by to [sic] confiscated said contraband."

Id.

Finally, he names as a

defendant Chief of Security James Cook, who "is in charge of training the
officers of how [sic] to take contraband from Residents."

Id. He seeks

damages. Id. at 9.
In a September 5, 2012 Order the Court concluded that Brinson
stated an excessive force claim against Jackson, but pled only a general
supervisorial liability (hence, legally insufficient) § 1983 claim against Hill
and Cook. It thus gave him 14 days to file a curative amendment. Doe.
9. After he failed to comply, the Court advised that defendants Hill and
Cook be dismissed from this case. Doe. 10. at 2.
In his Fed. R. Civ. P. 72(b)(2) Objection, Brinson claims he never
received the September 5th Order, nor anything beyond a June 13, 2012
Order. 1 Doe. 12 at 1. He moves the Court to re-send him all filings
after that date.
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Id.

He also states that he has been kept in lockdown for

He had sent in an address change, docketed on June 25, 2012. Doc. 6. The Clerk
duly noted it and sent the Court's September 5th Order to: "Patrick Brinson,
#1160730, Johnson State Prison, P.O. Box 344, Wrightsville, GA 30466." Doe. 9
(service note). That conforms with his address change. Nevertheless he claims he
has not received documents 8,9 & 10, and he requests that the Clerk re-send them to
him. Doe. 12 at 1. Document 8 is merely a ministerial "staff note." Document 9 is
the September 5th Order, and document 10 is the now vacated R&R that he obviously
received, given his Objections. The Clerk is thus DIRECTED to send him only a
copy of the September 5th Order, doe. 9.
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the past two months and barred from law library access.

Id. at 2.

Finally, he moves the Court to order the defendants to produce to him all
pictures that it took of his injuries.

Id.

He worries that they may be

destroyed. Id.
Brinson also supplies a "Curative Amendment." Doc. 12-1. There
he insists Lucretia Hill should remain in this case because she is the
facility's superintendent and "it is by her orders that the officers make it
her duty to pursue residents thought to be in possession of cell phones. If
it was not by her command that situation of abuse would not happen.
Secondly[,] James Cook should be held responsible for the fact that he
physically trained and directed said officer in this incident."

Id. at 2.

Furthermore Plaintiff would like to show cause by using a
hypothetical situation. If Plaintiff was to buy coffee at a fast food
restaurant and be given a cup that opens from the bottom and burns
him, then the person who gave him the cup, the training manager
and the owner are all responsible for the matter at hand. In this
case the person giving the cup if Clarence Jackson, the manager is
James Cook and the owner would be Lucritia Hill.
Id.
Brinson plies nothing but standard negligence and respondeat
superior legal theories that, as explained in the prior Order, doc. 9 at 3-7,
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fail to make the grade. The Court thus affirms its prior ruling in advising
that Hill be dismissed from this case. But the Court will grant plaintiff
leave to expand on his claim that James Cook "directed said officer in this
incident." Doe. 12-1 at 2. If he means that Cook was at the scene of the
beating and directed Jackson to "body slam" him, doe. 1 at 6, then he
states a claim against Cook. If he means that Cook deliberately trained
Jackson to do that, then that also states a claim.
But if plaintiff is simply asserting that Cook generally trained
Jackson, and it is merely , Brinson's inference that such included Cook's
direction to body-slam inmates like Brinson, then such a conclusory
allegation would fail to meet the standard set forth by Ashcroft v. Iqbal,
556 U.S. 662, 681 (2009), as previously explained.

See doe. 9 at 1 n. 1.

Brinson shall have 21 days to re-plead that point. And now that he will
have the benefit of the September 5th Order explaining the legal
standards, he is free to re-plead his case against defendant Hill.
Brinson is reminded, however, that he must plead facts, not
falsehoods or vague generalities. And he must declare the facts he pleads

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to be true, under penalty of perjury per 28 U.S.C. § 1746 2 and 18 U.S.C. §
1623(a). See United States v. Dickerson, CR608-36, doe. 47 (S.D. Ga. Dec.
11, 2008) (convicted of violating 18 U.S.C. § 1623(a) while seeking 28
U.S.C. § 2255 relief); aff'd, 2010 WL 4409382 (11th Cir. Nov. 8, 2010).
Brinson is free to exercise his discovery and spoliation-claim 3 rights
to obtain the medical documents he seeks. In fact, the Court is directing
service on defendant Jackson, and after that service is noted on the
record, Brinson may deploy all of his discovery rights on that score.

See,

e.g., Fed. R. Civ. P. 34 (document requests).
To summarize, the Court's October 4, 2012 Report and
Recommendation is VACATED. Doe. 10. The Clerk is DIRECTED
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At the end of any amended Complaint he must insert this over above his signature:
"I declare (or certify, verify, or state) under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct. Executed on (date)."
28 U.S.C. § 1746(1).

To prove spoliation, a party "must establish, among other things, that the
destroyed evidence was relevant to a claim or defense such that the destruction of the
evidence resulted in prejudice." Eli Lilly & Co. v. Air Express Int'l, USA, Inc., 615 F.3d
1305, 1318 (11th Cir. 2010); Flury v. Daimler Chrysler Corp., 427 F.3d 939, 943 (11th
Cir. 2005) (spoliation analysis hinges upon the significance of the evidence and the
prejudice suffered as a result of its destruction). Once spoliation is proved, the
plaintiff may be entitled to a jury instruction that the destroyed evidence would have
adversely affected the spoliating party's claim or defense. Bad faith must be shown.
Malice is not required, but mere negligence in losing or destroying records is not
enough. Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009).

to send plaintiff a copy of the Court's September 5, 2012 Order (doe. 9).
The Court will advise the district judge to dismiss defendants Lucretia
Hill and James Cook from this case unless, within 21 days of the date this
R&R is served, Brinson fiks an amended Complaint stating claims against
them. In the meantime, the Marshal shall serve defendant Clarence
Jackson.
SO ORDERED, this day of November, 2012.
UNITJIf STATES MAGISTRATE JUDGE
§SOUTHERN DISTRICT OF GEORGIA

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