Owens v. Prince et al

Filing 16

ORDERED that the Clerk is directed to forward a copy of plaintiff's amended complaint and this Order to the Marshal for service upon all defendants. Signed by Magistrate Judge G. R. Smith on 9/2/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DANTONIUS M. OWENS,
)

Plaintiff,

)
)

Case No. CV414-212

V.

BARBARA PRINCE, GLENDEN
BIRDDELL, LAWRENCE MANKER,
and JACK KOON,
Defendants.

ORDER
Proceedingpro se, Dantonius M. Owens brings this 42 U.S.C. § 1983
action against four employees of Coastal State Prison. He alleges that
prison guard Barbara Prince sexually assaulted him, while the remaining
defendants either actively participated in the assault (Glenden Birddell
and Lawrence Manker), or retaliated against Owens for filing a grievance
about the incident (Jack Koon). See doc. 15 at 5-9.
I. BACKGROUND
The undersigned originally recommended dismissal because Owens
filed suit well outside the two year statute of limitations for § 1983 claims

in Georgia (he filed this case in September 2014, while the sexual assault
occurred in 2009). See doc. 8 at 3 (quoting Williams v. City of Atlanta, 794
F.2d 624 ) 626 (11th Cir. 1986)) ("[T]he proper limitations period for all
section 1983 claims in Georgia is the two-year period set forth in O.C.G.A.
§ 9-3-33 for personal injuries."). After Owens objected (doc. 13), claiming
that the Georgia Department of Corrections (GDOC) caused his filing
delay by dragging its feet in addressing Owens' many internal grievances,
the district judge declined to adopt the dismissal recommendation and
instead gave Owens additional time to correct pleading deficiencies. Doc.
14. Owens timely filed the complaint that the Court now screens
pursuant to 28 U.S.C. § 1915A to determine whether he has stated a
cognizable claim for relief.'

1

Courts must dismiss prisoner actions against government entities or officials that
are frivolous or malicious, fail to state a claim for relief, or seek damages from a
defendant immune from such relief. § 1915A; see 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"); 28 U.S.C. § 1915(e)(2)(B) (imposing the
same dismissal obligation as to an action filed in forma pauperis by any "person,"
including a "prisoner," regardless of the defendant's identity or the nature of the
cause of action).
2

Owens claims' that "[o]n December 16, 2009, at Coastal. . . Officer
Barbara Prince . . . instructed Mr. Owens to allow her to search him."
Doe. 15 at 5. Owens notified Sgt. Birddell because he "had already filed a
complaint" against Prince. Birddell instructed Owens to allow Prince to
search him and Owens complied.

Id.

Plaintiffs allegations, in raw,

unedited form:
Prince started her pat search with rubbing up Mr. Owens thigh to
his privet area. She then grabbed a handful of Mr. Owens privet,
and continued to caress Mr. Owens genatal area until Mr. Owens
became very uncomfortable. Mr. Owens asked Officer Prince to stop
and then backed away from Officer Prince on going touching of his
genatals.
Officer Prince ... then called Sgt. Birddell over telling her how
Mr. Owens won't let her touch him. Sgt. Birddell placed Mr. Owens
in handcuffs. Officer Prince and Sgt. Birddell escorted Mr. Owens to
the isolation building. . . . Doing the time Mr. Owens was being
escorted to isolation Sgt. Birddell and Officer Prince called Mr.
Owens gay and made comments as to Mr. Owens thinks he's to
damn good to be touched.
When Mr. Owens got to [isolation], Lt. Lawrence Manker was
standing there.... Lt. Manker joined in calling Mr. Owens gay and
stated he was going to teach Mr. Owens a lesson. . . . Lt. Manker
[then] choked Mr. Owens while he was in handcuffs to a point where
Mr. Owens begin to blackout. Lt. Manker then forced Mr. Owens to
get naked in front of Sgt. Birddell and Officer Prince. . . . Mr. Owens
2

The Court presents the facts as if the allegations in the complaint are true. See
Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).

was then forced to bend over and grab his butt and spread it wide
open. He was told to hold it that way while Lt. Manker, Sgt.
Birddell, and Officer Prince look onto him making jokes. Once they
were done, Lt. Manker picked up Mr. Owens clothes and took them
with him. Mr. Owens was forced to be naked until the next shift
change.
Id. at 6.
Three days later, after Owens filed a formal complaint against the
officers, Birddell entered his building and verbally threatened Owens. Id.
at 7. "She took Mr. Owens into the shower area of the dorm and made
him get naked again. . . . Once she was done stripping Mr. Owens, she
placed him in handcuffs and escorted" him to segregation, ostensibly
because Owens sexually assaulted Birddell and two officers assisting her.
Id.
On January 13, 2010, Owens had a disciplinary hearing at which the
hearing officers watched a video of Prince's inappropriate "search." Id. at
7-8. The officers informed Owens that "for the sake of everybody we [are]
going to say Mr. Owens brought all this on to himself," and "that if Mr.
Owens wanted to get out of lockdown he will agree." Id. at 8. Owens was
then given "7 days isol. probated for 60 days with the understanding that

4

Mr. Owens was not to be around any building Officer Prince is working...
and she will be advised to stay away from Mr. Owens." Id.
Owens "continued to push for some justice." Id. In response, "the
warden of Coastal [Jack Koon] . . . told Mr. Owens that he was going to
insure that Mr. Owens would die in prison because Mr. Owens filed his
complaint of sexual abuse." Id. After being transferred to the Chatham
County jail for a court date, Owens complained to that facility's
investigator about his treatment at Coastal. Id. That attempt to "push
for justice" fizzled too. In total, Owens says he "has filed over (8) eight
complaints concerning" his assault by Officer Prince. Id. at 9.
In addition to his own complaints, Owens' family emailed the GDOC
Ombudsman in February 2011, May 2011, and May 2013 inquiring about
why nothing had been done about the sexual harassment Owens suffered.

See doe. 13 at 6-10. Twice the Ombudsman responded that he or she could
not locate any grievances under Owens' name related to sexual assault.

Id. at 6, 8. Ten days after the most recent Ombudsman email, Owens filed
another grievance. Id. at 8 (email sent May 10, 2013, formal grievance
filed May 20, 2013). Owens says that, finally, in 2014, the GDOC "stated

5

they will not respond or resolve any of the complaints filed and that any
investigation of the complaints are now over." Id. at 3.
IL ANALYSIS
Taking all of Owens' allegations as true, see supra n. 2, and in light
of his claim that he filed so long after the 2009 assault only because the
GDOC dragged its feet in addressing his complaints, 3 dismissal for failure
to exhaust administrative remedies is not proper at this stage.' Still, the

Owens brought suit approximately five years after the alleged sexual assault. The
statute of limitations is two years and absent some sort of tolling mechanism his
claims still fail for that reason. The Prison Litigation Reform Act ("PLEA") does not
provide for statutory tolling. And no Georgia court has held that the limitations
period for personal injury claims can be equitably tolled while a prisoner exhausts
administrative remedies.
This Court has, however. See Watkins v. Haynes, 2013 WL 1289312 at * 8 (S.D. Ga.
Mar. 27, 2013) ("Applying the rationale from [relevant Georgia] cases. . . this Court
holds that the statute of limitations was tolled while Plaintiff complied with the PLEA
by pursuing possible administrative remedies prior to filing suit."). And if tolling
occurs while a prisoner tries to exhaust, then arguably it likewise occurs if the state, by
purposefully ignoring or delaying decision on administrative applications for redress,
causes the limitations period to expire.
That's precisely what Owens alleges occurred here. Specifically, he says that he
tried to complain internally from December 20, 2009 until at least May 20, 2013 and
that it wasn't until 2014, after years of refusing to do anything (including follow its
own procedures by actually deciding grievances), that the GDOC finally told him they
were done investigating. Doc. 15 at 3, 6-9. Since the two year clock was tolled from
December 20, 2009 until sometime in 2014, his claims surmount the time bar that the
Court previously found to apply, since he filed this action on September 25, 2014. Doc.
1.
4

Under the PLEA exhaustion provision, a prisoner must exhaust all available

administrative remedies before filing an action that challenges the conditions of his
confinement. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to
prison conditions under section 1983 . . . by a prisoner confined in any jail . . . until
such administrative remedies as are available are exhausted."). Exhaustion is a
"pre-condition to suit" that must be enforced even if the available administrative
remedies are either "futile or inadequate." Harris v. Garner, 190 F.3d 1279, 1285-86
(11th dr. 1999); see also Jones v. Bock, 549 U.S. 199, 199-200 (2007) ("There is no
question that exhaustion is mandatory under the PLRA.").
Not only does the PLRA require exhaustion, it "requires proper exhaustion,"
Woodford v. Ngo, 548 U.S. 81, 93 (2006), which means an inmate must "us[e] all steps"
in the administrative process, and comply with any administrative "deadlines and
other critical procedural rules," before filing a complaint about prison conditions in
federal court. Id. at 89-91 (citation omitted). Thus, if an inmate has filed an
"untimely or otherwise procedurally defective administrative grievance or appeal," he
has not properly exhausted his administrative remedies. Id. at 83-84; see also Lambert
v. United States, 198 F. App'x 835, 840 (11th Cir. 2006) (proper exhaustion requires
filing grievance "under the terms of and according to the time set by" prison officials).
If a prisoner fails to complete the administrative process or falls short of compliance
with procedural rules governing prisoner grievances, he procedurally defaults his
claims. Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005). In Georgia,
"proper exhaustion" means that prisoners are required to complete a three step
grievance process, consisting of an informal grievance, a formal grievance, and an
appeal, before filing suit in federal court. Helton v. Burks, 2012 WL 6097036 at * 2
(M.D. Ga. May 4, 2012) (citing Ga. Dept of Corr. SOP 11B05-001 § VI).
Owens' allegations are, on preliminary review at least, sufficient to satisfy the
exhaustion requirement. He alleges that (1) he complained repeatedly (8+ times)
about Officer Prince's assault; (2) his family complained on his behalf; (3) the GDOC
both did nothing in response and actively short-circuited formal investigations; and (4)
he was finally informed in 2014, five years after the incident complained of, that "any
investigation" was "now over." Doe. 15 at 3. That's sufficient at this stage,
particularly since Owens' core exhaustion-related allegation is that the GDOC
purposely failed to respond to, much less investigate, his attempts to utilize the prison
grievance system. See Woodford, 548 U.S. at 103-04 (Breyer, J., concurring)
(suggesting that PLRA's "proper exhaustion" requirement is subject to
"well-established exceptions" such as "unavailable administrative remedies");
Hemphill v. New York, 380 F.3d 680, 689 (2d Cir. 2004) (recognizing that "the
behavior of [a] defendant[] may render administrative remedies unavailable," and
thus PLRA's exhaustion requirement inapplicable); Hall v. Leavins, 2009 WL 563877
at *5..6 (N.D. Fla. Mar. 4, 2009) (noting that the Eleventh Circuit has "not decided. .
7

Court must evaluate whether Owens' allegations state a claim for relief.
See 28 U.S.C. § 1915A (on preliminary review, courts must dismiss any
prisoner complaint against governmental officials that fails to state a
claim for relief). They do.
Owens has "a prisoner's constitutional right to bodily privacy."
Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (citing Fortner v.
Thomas, 983 F.2d 1024 (11th Cir.1993)). Although the right is "very
narrow," a person's "special sense of privacy in their genitals" animates
that right where their genitals are involuntarily exposed to "people of the
other sex." Id. at 1110-1111. Boxer X, for example, stated a claim under §
1983 by alleging that "Harris, a female prison guard, solicited [him] to
masturbate for her viewing." Id. at 1111.
The Court sees little to no daylight between Owens' allegations and
those in Boxer X.

Prince molested Owens under the guise of a search.

how much less than perfect compliance with administrative remedies is enough to
constitute LIPLRA] exhaustion," but nevertheless concluding that plaintiff exhausted
available remedies where he placed final appeal of disciplinary denial of grievance in
mail system, but grievance was never delivered to the proper party and thus never
addressed). If, however, the GDOC moves to dismiss and puts forward proof showing
that, even assuming Owens' allegations to be true, he failed to exhaust and the GDOC
did not inhibit his efforts to do so, the PLRA obligates the Court to dismiss his claims.
See Turner v. Burnside, 542 F.3d 1077, 1082 (11th Cir. 2008); Harris, 190 F.3d at
1285-86. If the GDOC wishes to do so, it must file its motion within 21 days after the
date of service of this Order. This claim, after all, has been delayed long enough.
ru

[Si

Then she, Birddell, and Manker forced him to "bend over and grab his
butt and spread it wide open" while they laughed at him and called him
"gay." Doe. 15 at 6. They then left him naked in a cell for hours for any
and all to see for no apparent reason. Id. That rises to a Boxer X level
privacy violation. Hence, Owens has stated a bodily privacy claim against
Prince, Birddell, and Manker (but not Koon).
Severe sexual abuse of a prisoner can also violate the Eighth
Amendment's proscription of cruel and unusual punishment. See Boxer
X, 437 F.3d at 1111 (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994).
'[S]exual abuse of a prisoner by a corrections officer has no
legitimate penological purpose, and is simply not part of the penalty
that criminal offenders pay for their offenses against society.'
Boddie [v. Schnieder], 105 F.3d at 861 [(2d Cir. 1997)] (citation and
quotation omitted). Following Boddie, we conclude that there is an
objective component of the inquiry, which requires that the injury
be 'objectively, sufficiently serious,' and a subjective component,
which requires the prison official have a 'sufficiently culpable state
of mind.' See id. at 861 (citing Farmer, 511 U.S. at 834, 114 S.Ct. at
1977). However, under our circuit precedent about the nature of
actionable injuries under the Eighth Amendment, an injury can be
'objectively, sufficiently serious' only if there is more than de
minimis injury. See Johnson v. Breeden, 280 F.3d 1308, 1321 (11th
Cir. 2002).
Id.

"The culpable state of mind of the corrections officer . . . may be

inferred from the act of sexual abuse, but 'isolated episodes of harassment

and touching' do not meet the" objectively serious component. Parker v.
Singletary, 2011 WL 720065 at * 2 (N.D. Fla. Jan. 26, 2011) (citing Boxer
X, 437 F.3d at 1111). As the Parker court explained:
Cases where the injury requirement has been met involve some type of
intrusive sexual contact, acts beyond mere touching, and allegations of
pain.' Otherwise, courts have found no constitutional violation. For
example, the court in Boddie found that the inmate failed to state an
Eighth Amendment violation, where he did not allege any pain or
injury, but complained about sexual comments by a female officer, who
also pressed herself up against him in a sexual manner. Likewise, in
Boxer [XI, the Eleventh Circuit found that an inmate forced to
masturbate in front of a female officer by threat of reprisal suffered
only a de minimis injury, which did not violate the Eighth Amendment.
• . . Other cases have held that one incident of non-violent harassment
alone was not sufficient to meet the cruel and unusual punishment
standard.'
Id. (footnotes in original, quotes omitted).
Owens' sexual assault allegations fail. He complains of "mere
touching" without any associated pain (though plenty of humiliation).
See, e.g., Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2000) (demand for oral
sex accompanied by grabbing and pushing inmate up against bars); Smith v. Cochran,
339 F.3d 1205 ) 1208 (10th Cir. 2003) (forced oral sex and sexual intercourse); Little v.
Walker, 552 F.2d 193, 197 (7th Cir. 1977) (rape); Styles v. McGinnis, 2001 WL 1667273
at * 2 (6th Cir. Dec. 26, 2001) (forced rectal examination); Liner v. Goord, 196 F.3d
132, 135 (2nd Cir. 1999) (intrusive body cavity search).
6

See, e.g., Marino v. Commissioner, 2010 WL 2731791 at * 10 (D. Me. June 30, 2010)
(inmate forced to walk around holding his own genitals); Silvagnoli v. Fischer, 2010
WL 1063849 at * 14 (N.D.N.Y. Mar.l, 2010) (guard alleged to have attempted to grab
inmate's groin area); White v. Bergenstock, 2009 WL 4544390 at * 4 (N.D.N.Y. Nov.25,
2009) (guard told inmate to show him his penis if he wanted extra food).
10

Id.; doe. 15 at 5-6. Moreover, he complains primarily about a single,
non-violent incident that in no way resembles "[c] ases where the injury
requirement has been met." Id.; see also, e.g., Joseph v. Fed. Bureau of

Prisons, 232 F.3d 901 (10th Cir. 2000) (unpublished) (no Eighth
Amendment violation where prison official touched inmate several times
in a suggestive manner and exposed her breasts to inmate); Berryhill v.

Schriro, 137 F.3d 1073 (8th Cir. 1998) (touching of inmate's buttocks by
prison employees, although inappropriate and later sanctioned by prison,
did not violate Eighth Amendment); Satcher v. Thomas, 2015 WL
3396063 at * 4 (N.D. Ala. July 10, 2014) (no cruel and unusual
punishment where male prison guard "put his hands Plaintiffs pants and
squeezed his penis, then put his hands down the back of his pants and
squeezed his buttocks"); Torres v. Casteel, 2010 WL 3194902 at * 7 (S.D.
Fla. Aug. 9, 2010) ("Defendant Casteel's one-time rectal examination,
[even if viewed as sexual assault and] even if the examination itself
involved more than one probing, was not objectively harmful enough to
establish an Eighth Amendment violation."). In other words, plaintiff's
sexual assault allegations fail to rise to an Eighth Amendment violation.

11

One of defendant Manker's actions unrelated to the sexual nature of
the assault, however, is another matter. Owens alleges that Manker, for
no legitimate reason, "choked Mr. Owens while he was in handcuffs to a
point where Mr. Owens beg[a]n to black out" and then forced him to get
naked in front of Prince and Birddell. Doc. 15 at 6. That rings the
excessive force bell with gusto, for only in an alternate universe could
Manker's actions, at least according to Owens' version of events, have
anything to do with maintaining or restoring discipline.

See Hudson v.

McMillian, 503 U.S. 1, 7 (1992) (the "core judicial inquiry [for excessive
force claims] is . . . whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause
harm"). Owens thus states an Eighth Amendment claim against Manker.
Finally, Owens also states a retaliation claim for a violation of his
"First Amendment rights to free speech and to petition the government
for redress of grievances." BoxerX, 437 F.3d at 1112. "[W]hen a prisoner
is punished for filing a grievance concerning the conditions of his
imprisonment," those rights are implicated. Id. Owens expressly claims
that Koon "told Mr. Owens that he was going to insure that Mr. Owens

12

would die in prison because Mr. Owens filed his complaint of sexual
abuse." Doe. 15 at 8. Moreover, he alleges that three days after he first
complained about the incident with Prince, and, importantly, because of
that complaint, Birddell stripped him naked again and placed him in
segregation for sexually assaulting her. Id. at 7. Under any construction,
much less the liberal one afforded pro se complaints, see Wilkerson v.
Georgia, 2015 WL 4279334 at * 2 (11th Cir. July 16, 2015) (quoting
Erickson v. Pardus, 551 U.S. 892 94 (2007)), those allegations state a
retaliation claim against Birddell and Koon. See Boxer, 437 F.3d at 1112.
III. CONCLUSION
The Court thus greenlights plaintiff's lawsuit on the following
claims: (1) a right to privacy claim against Prince, Birddell, and Manker;
(2) an excessive force claim against Manker; and (3) a retaliation claim
against Birddell and Koon. Because Owens proceeds IFP, service will be
effected by the United States Marshal. Fed. R. Civ. P. 4(c)(3).
Accordingly, the Clerk is DIRECTED to forward a copy of plaintiffs
amended complaint (doe. 15) and this Order to the Marshal for service
upon all defendants. In most cases, the Marshal will first mail a copy of

13

the complaint and its amendment to a defendant by first-class mail and
request that each defendant waive formal service of the summons. Fed. R.
Civ. P. 4(d); Local Rule 4.7. Defendants have a duty to avoid unnecessary
costs of serving the summons, and if they fail to comply with the waiver
request, they must bear the costs of personal service unless good cause can
be shown. Fed. R. Civ. P. 4(d). A within-district defendant who timely
returns the waiver is not required to answer the complaint until thirty
days after the date that the Marshal sent the request for waiver. Fed. R.
Civ. P. 4(d)(3).

SO ORDERED this Zday of September, 2015.

L~2Z~~6i2-

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

14