Fru v. Liberty County Jail et al

Filing 7

REPORT AND RECOMMENDATIONS dismissing re 1 Complaint filed by Adey Fombang Fru. Objections to R&R due by 4/27/2017. Signed by Magistrate Judge G. R. Smith on 4/13/17. (trb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ADEY FOMBANG FRU,

FILED
Scott L. Poff, Clerk
United States District Court

By tblanchard at 2:05 pm, Apr 13, 2017

)
)
)
)

Plaintiff,

CV416-327

v.
LIBERTY COUNTY JAIL,
LIBERTY COUNTY JAIL
ADMINISTRATORS, et al.
Defendants.

REPORT AND RECOMMENDATION
Pro se plaintiff Adey Fombang Fru brings this action against the
Liberty County (Georgia) Jail, its “[a]dministrators” (specifically, Major
Jeffrey Hein and Captain Lisa Boyd), and the Jail’s medical-service
provider, Southern Correctional Medicine. Doc. 1 at 1, 4. He alleges
that Jail staff failed to protect him from an assault by another inmate and
underprovided post-assault medical care.

Id. at 5-6. He asks the Court

only “for justice to be done because [he is] still suffering from mental and
physical pain from [his] injuries.” Id. at 7. The Court granted Fru’s
request to proceed in forma pauperis (IFP), doc. 3, and he returned the

1

necessary forms, docs. 4 & 5. The Court must now screen out any claims
that are (1) frivolous or malicious, (2) fail to state a claim on which relief
may be granted, or (3) seek monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Fru’s claims against Liberty County Jail fail because it is not an
entity subject to suit.

See Lovelace v. DeKalb Cent. Prob. , 144 Fed. App’x

793, 795 (11th Cir. 2005) (county police department not a legal entity
subject to suit); Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992)
(sheriff and police departments not usually considered legal entities
subject to suit); Bembry v. St. Lawrence , 2007 WL 4256984 at * 2 (S.D. Ga.
Nov. 30, 2007) (“Chatham County Jail [ ] is not an entity subject to suit
under § 1983”). Those claims therefore should be DISMISSED .
Fru’s allegations against the jail’s medical-care provider fail to state
a claim. He objects that an unidentified “jail nurse” refused to perform
an HIV test after he was assaulted and that he “was denied” (it’s not
clear by whom) hospital “examination[]” for his injuries. Doc. 1 at 6.
Deliberate indifference to an inmate’s serious medical needs can support
a § 1983 claim.

See, e.g., Hamm v. Dekalb County, 774 F.2d 1567, 1575

(11th Cir. 1985). Mere disagreement with the treatment provided,
2

however, does not.

Id. (holding that, although inmate “may have

desired different modes of treatment, the care the jail provided did not
amount to deliberate indifference.”); see also Estelle v. Gamble , 429 U.S.
97, 107 (1976) (“the question whether an X-ray or additional diagnostic
techniques or forms of treatment is indicated is a classic example of a
matter for medical judgment. A medical decision not to order an X-ray,
or like measures, does not represent cruel and unusual punishment.”).
Fru admits that he “was placed in the jail medical observation
[unit] for 24 hours” following the assault by a fellow inmate. Doc. 1 at 6.
He has described no injuries that would have warranted his transfer to a
local hospital.

Id. at 5-6 (describing the contusions, abrasions, and

edema he sustained, as well as migraines and dizziness). Nor has he
shown that the jail nurse acted with deliberate indifference by assuring
him that HIV screening was not indicated simply because he had been
bitten by a fellow inmate. Fru has failed to allege that the care he
received was deficient in any way, and the fact that he preferred a
different course of treatment than the nurse, in her medical judgment,
deemed necessary is not enough to state an Eighth Amendment claim.

3

Accordingly, all of Fru’s claims related to his medical care, including all
claims against Southern Correctional Medicine, should be DISMISSED .
Prison officials have a duty to protect prisoners from assaults by
other prisoners.

See, e.g., Farmer v. Brennan , 511 U.S. 825, 833 (1994).

“A prison official violates the Eighth Amendment when he actually
(subjectively) knows that an inmate is facing substantial risk of serious
harm, yet disregards that risk by failing to respond to it in an (objectively)
reasonable manner.”

Rodriguez v. Sec’y for the Dept. of Corrs. , 508 F.3d

611, 617 (11th Cir. 2007). The duty to protect, however, must be
understood in its proper context: “Prisons are dangerous places because
they are filled with people society has already deemed too dangerous to
live amongst law abiding persons. Prisoners will always be at some risk
of harm simply by being surrounded by these people.”

Green v. Hooks ,

2017 WL 1078646 at *10 (S.D. Ga. Mar. 21, 2017). In order to trigger a
failure-to-protect claim, a plaintiff must allege that the threat rose above
the background danger.

See Carter v. Galloway , 352 F.3d 1346, 1349

(11th Cir. 2003) (“[B]efore Defendants’ awareness arises to a sufficient
level of culpability, there must be much more than mere awareness of [an

4

inmate’s] generally problematic nature.” (emphasis added)). Fru
sketches such a violation, but, in the end, paints with too broad a brush.
First, Fru does not sufficiently allege that he faced a significant
threat. He alleges that his assailant had voiced a generally threatening
intent -- that “he was suicidal and homicidal,” “that he would hurt

someone ” if he were not isolated, and that he “was [known to be] a threat
to third parties .” Doc. 1 at 6 (emphasis added). The fact that Fru’s
assailant was, generally, a “threat” may simply explain why he is
incarcerated, and certainly does not distinguish him from numerous
other prisoners. Fru must do more to explain what made the threat his
assailant posed significant, such that his jailers’ failure to address it could
violate his constitutional rights.
Fru’s allegations also fail to sufficiently identify the prison
employees he contends knew about any serious threat that his assailant
posed. He states that the inmate who allegedly assaulted him “told the

jail staff numerous times that he would hurt someone in the dorm” if he
were not isolated. Doc. 1 at 5 (emphasis added). That allegation, at
best, implies that someone at the jail knew that his assailant posed a risk.
Fru also alleges that “[t]hey” (perhaps referring to Hein and Boyd) knew
5

his assailant was a “threat” because “it was stated on his ‘First
Appearance’ paperwork from the jail magistrate judge.”

Id. at 6.

Although his Complaint implies that the threat posed by his assailant was
known prior to his assault, he has not specifically alleged that any
particular defendant knew that he was being exposed to a significant risk
of serious harm. 1 It fails, therefore, to state a claim against either of
them.
Despite his claim’s deficiency, “when a more carefully drafted
complaint might state a claim, a district court should give a pro se
plaintiff at least one chance to amend the complaint before the court
dismisses the action.”

Jenkins v. Walker , 620 F. App’x 709, 711 (11th

Cir. 2015) (citing Bank v. Pitt , 928 F.2d 1108, 1112 (11th Cir. 1991),

overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp. , 314 F.3d
541, 542 & n. 1 (11th Cir. 2002) (en banc)); see also Fed. R. Civ. P.
15(a)(2) (courts should grant leave to amend “freely . . . when justice so
requires”); Seckinger v. Bank of Am., N.A. , No. CV415-306, 2016 WL
1

If Fru has reason to believe that a particular prison official knew that his alleged
assailant posed a threat, he should clearly allege who knew what and when. What he
should not do is speculate about specific prison officials’ knowledge. If he is only able
to allege that prison staff, in general, knew or must have known about the threat his
assailant posed, he may state his claim against “John Doe” defendants, then try to
identify them through discovery.
6

1381814 at *2 (S.D. Ga. Apr. 6, 2016). The Court in its discretion,
therefore, will give him a chance to amend his Complaint. He must do so
within 30 days of the date this Order is served. Failure to timely comply
may result in a recommendation of dismissal on abandonment grounds.

See Fed. R. Civ. P. 41(b).
Meanwhile, Fru must pay his $350 filing fee. His furnished
account information shows that he has a zero balance in his prison
account. Doc. 5 at 1. He therefore does not owe an initial partial filing
fee.

See 28 U.S.C. § 1915(b)(1) (requiring an initial fee assessment

“when funds exist,” under a specific 20 percent formula). His custodian
(or designee), however, shall set aside 20 percent of all future deposits to
his account and forward same 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. The Clerk is DIRECTED to send this Report and
Recommendation (R&R) to Fru’s account custodian immediately. In the
event he is transferred to another institution, his present custodian shall
forward a copy of this R&R and all financial information concerning
payment of the filing fee and costs in this case to his new custodian. The
balance due from the plaintiff shall be collected by the custodian at his
7

next institution in accordance with the terms of this R&R.
This R&R is submitted to the district judge assigned to this action,
pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3.
Within 14 days of service, any party may file written objections to this
R&R with the Court and serve a copy on all parties. The document
should be captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp. , 648
F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S. , 612 F. App’x 542, 545
(11th Cir. 2015).

8

SO REPORTED AND RECOMMENDED this 13th day of
April, 2017.

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGLL