Koffler v. Ward et al
Filing
4
ORDER SEVERING AND TRANSFERRING to the Northern District of Georgia the portions of the complaint originating at GSDP against Defendants Ford, Unidentified Nurse #1, and Unidentified LPN #1. Plaintiff's failure to protect claim will proceed against Defendant Sergeant Brown. All other claims against Defendant Brown and all claims against remaining Defendants are dismissed. Signed by Judge Dudley H. Bowen on 8/1/2022. (pts)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
U.S. i
CSUST
/•.I.V
SAVANNAH DIVISION
j i.-n Dl V.
AUG - I P 2 51
JOHN ROBERT KOFFLER,
Plaintiff,
••
I
•
W J. w..-- i.
;r
I
CV 421-257
V.
TIMOTHY WARD, Commissioner; BEN
FORD, Warden; NICHOLAS
*
*
STRICKLAND; 2. JONES, D/W of
*
Security; C. BETTERSON, D/W of
*
Care and Treatment; B. BARNWELL, *
Grievance Counselor; BROWN,
*
Cert Sgt.; UNIDENTIFIED NURSE'
*
#1; UNIDENTIFIED LPN #1;
BROOKS BENTON, Warden; and B.
KAIGLER, Chief Counselor
*
*
*
*
Defendants.
*
ORDER
Plaintiff
filed
this
State Prison ("CSP").
lawsuit
while
incarcerated
(Compl., Doc. No. 1, at 3.)
at
Coastal
Plaintiff is
proceeding pro se in this case brought under 42 U.S.C. § 1983.
Because
he
is
proceeding
as
a
pro
se
prisoner.
Plaintiff s
pleadings must be screened to protect potential defendants.
See
Phillips V. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984}
(per
curiam); Al-Amin v. Donald, 165 F. App'x 733, 736 (11th Cir. 2006)
(per curiam); 28 U.S.C. § 1915A.
1
A pro se litigant's pleadings
The Clerk listed the following defendants on the docket:
Employees of Coastal
State Prison, Employees of GA Diagnostic & Classification Prison (GDCP), and
Offender Defendant at Coastal State Prison.
Upon review, however, the Court
has
determined that
Defendants.
these
names
were
mere
headings
on
Plaintiff's
list
of
Accordingly, the Clerk is directed to TERMINATE these defendants
from the case.
IJM.
are
held
to
a
more
lenient
standard
than
those
drafted
by an
attorney, Erickson v. Pardus, 551 U.S. 89, 94 (2007), but the Court
may
dismiss
the
Complaint
or
any
portion
thereof
if
it
is
frivolous, malicious, fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant who is
immune
to
such
relief.
See
28
U.S.C.
§§
1915(e)(2)(B)
and
1915A(b).
I.
LEGAL STANDARD
A complaint or any portion thereof may be dismissed if it is
frivolous, malicious, fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant who is
immune to such relief.
See 28 U.S.C. § 1915(e)(2)(B).
A claim is
frivolous if it "'lacks an arguable basis either in law or in fact.''
Neitzke, 490 U.S. at 325 (1989).
"Failure to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard as dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6)."
Wilkerson
V. H & S, Inc., 366 F. App'x 49, 51 (11th Cir. 2010) (citing Mitchell
V. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)).
To avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must "state
a claim to relief that is plausible on its face."
V.
Twombly,
550
U.S.
544,
570
(2007).
"A
Bell Atl. Corp.
claim
has
facial
plausibility when the plaintiff pleads factual content that allows
the court to draw
the
reasonable
2
inference
that the
defendant is
liable for the misconduct alleged."
662, 678 (2009).
Ashcroft v. Iqbal, 556 U.S.
That is, ''[f] actual allegations must be enough to
raise a right to relief above the speculative level."
U.S. at 555.
Twombly, 550
While Rule 8(a) of the Federal Rules of Civil Procedure
does not require detailed factual allegations, "it demands more than
an
unadorned,
the-defendant-unlawfully-harmed-me
Iqbal, 556 U.S. at 678.
accusation."
A complaint is insufficient if it "offers
^labels and conclusions' or
^a formulaic recitation of the elements
of a cause of action,'" or if it "tenders ^naked assertions' devoid
of ^further factual enhancement.'"
at
555,
557).
In
Id. (quoting Twombly, 550 U.S.
short, the complaint must
provide
a "'plain
statement' possess[ing] enough heft to 'sho[w] that the pleader is
entitled to relief.'"
Twombly, 550 U.S. at 557 (quoting Fed. R.
Civ. P. 8(a) (2)).
Finally, courts afford a
liberal construction
to a pro se
litigant's pleadings, holding them to a more lenient standard than
those drafted by an attorney.
Erickson, 551 U.S. at 94; Haines v.
Kerner, 404 U.S. 519, 520 (1972).
However, this liberal construction
does not mean that courts have a duty to re-write the complaint.
Snow V. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006).
II.
DISCUSSION
The Court will address each of Plaintiff s enumerated claims
against the Defendants in turn.
At the conclusion of the Order,
all Defendants who have not had a potentially viable claim asserted
against them will be dismissed.
Claim #1: GDCP Claims - Transferred
Plaintiff's first claim alleges that officials working in the
Georgia Diagnostic and Classification Prison (""GDCP") in Jackson,
Georgia,
violated
his
Eighth
Amendment
rights
by
suddenly
depriving him of mental health medication instead of tapering him
off
the
medication
shoulder injury.
and
by
denying
(Compl. at 7.)
medical
care
related
to
a
Specifically, he names Warden
Ben Ford, an unidentified nurse #1, and an unidentified LPN #1 as
Defendants.
Plaintiff's claims regarding the GDCP have been improperly
joined in this suit.
''Persons . . . may be joined in one action
as defendants" as long as (1) the claims against them "aris[e] out
of the same transaction, occurrence, or series of transactions or
occurrences" as the underlying action, and (2) "[a] question of
law
or
fact common
to
all defendants
will
arise in
the
action."
Fed. R. Civ. P. 20(a); Daker v. Head, 730 F. App'x 765, 768 (11th
Cir. 2018).
The claims originating at GDCP arise from different
occurrences and contain no common question of law or fact to those
claims made against the separate CSP Defendants.
Furthermore, venue as to Plaintiff's claims arising at GDCP
is not proper in this district.
Although a district court "shall
dismiss" a case with improper venue, 28 U.S.C. § 1406(a), it may
only do so on its own motion "'as long as the procedure employed
4
is fair.'"
Carroll v. Fort James Corp.^ 470 F.3d 1171, 1177 (5th
Cir. 2006) (quoting Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th
Cir. 1998)).
To that end, the Eleventh Circuit requires a district
court to "'provide the
plaintiff with
notice of its intent to
dismiss or an opportunity to respond," unless the complaint is
patently frivolous.
Am. United Life Ins. Co. v. Martinez, 480
F.3d 1043, 1069 (11th Cir. 2007); Byrne v. Nezhat, 261 F.3d 1075,
1127 n.99 (11th Cir. 2001); see also Alqodonera De Las Cabezas,
S.A. V. Am. Suisse Capital, Inc., 432 F.3d 1343, 1345 (11th Cir.
2005) ("[W]e have . . . made clear that while a district court may
dismiss a suit sua sponte for lack of venue, it may not do so
without first giving the parties an opportunity to present their
views on the issue.")
are
Because Plaintiff has stated claims which
not "patently frivolous," the Court will sever
Plaintiff's
claims against GDCP and transfer them to the Northern District of
Georgia where venue is proper instead of dismissing them.
Claim #2:
Exposure to Drugs at CSP
Plaintiff alleges that after transferring to CSP, Defendant
Benton, Defendant Betterson, and the other unnamed employees of
CSP violated the Eighth Amendment and the Federal Clean Air Act by
exposing him to drug, tobacco, and marijuana use.2
(Compl. at 7-
2 Plaintiff alleges he is unable to grieve the smoke exposure, which he contends
constitutes deliberate indifference.
He holds Defendants Ward, Benton, and
Barnwell responsible for depriving him of his right to grieve.
This is the
basis of Plaintiff's fourth claim as well, and the Court will address the claim
supra.
5
8.)
The
exposure
breathing.
has
caused
him
to
cough
and
have
trouble
(Id.)
While a prisoner may state a cause of action under the Eighth
Amendment for exposure to environmental pollutants such as tobacco
smoke
C'ETS")
by "alleging that [prison officials]
have,
with
deliberate indifference, exposed him to levels of ETS that pose an
unreasonable risk of serious damage to his future health," see
Helling v. McKinney, 509 U.S. 25, 35 (1993), Plaintiff has not
done
so
here.
In
this
case.
Plaintiff
makes
no
allegation
regarding the quantity of smoke and fumes, and he fails to describe
how other inmates' use of drugs has injured him.
Hicks, 400
failed
to
F.3d
1282, 1285 (11th
make
objective
Cir.
showing
2005)
required
See Kelley v.
(holding
to
prisoner
support
Eighth
Amendment claim for exposure to secondhand smoke where, inter alia,
he merely alleged inmates smoked inside the facility where he was
incarcerated but not, for example, that he was housed in a cell
with a heavy smoker); Shabazz v. Barrow, 2006 WL 826712, at *2
(M.D. Ga. Mar. 29, 2006) (holding prisoner's allegation smoke was
released
into
the
building
where
he
was
incarcerated
was
insufficient to show he was exposed to unreasonably high levels of
secondhand smoke).
Even if Plaintiff had alleged facts that would support a
finding
that
he
is
exposed
to
unreasonably
high
levels
of
secondhand smoke, he fails to assert facts which would support a
finding
that
Defendant
Benton,
6
Defendant
Betterson,
and
the
unnamed employees of CSP were deliberately indifferent to the risk
posed by the exposure.
prisoner
remains
Relevant to the inquiry is "whether the
housed
in
the
environment"
and
whether
the
facility has adopted a formal smoking policy, the latter of which
"will bear heavily on the inquiry into deliberate indifference."
Helling, 509 U.S. at 35-36.
Plaintiff admits in his Complaint
that he was transferred to a different unit after he was assaulted,
and
he
makes
Moreover,
no
the
mention
thrust
of
of
continued
Plaintiff s
smoke
exposure
deliberate
there.
indifference
argument is that "policy 227.02" and "Section 2A and 2B" are not
being enforced; this allegation, standing alone however, does not
state a claim for deliberate indifference.
See Scott v. Dist. of
Columbia, 139 F.3d 940, 944 (D.C. Cir. 1998) ("[I]t is hard to see
how
imperfect
enforcement
of
a
nonsmoking
satisfy Helling^ s subjective element.
such
a
policy
militates
against
policy
can,
alone,
That the District even has
a
finding
of
deliberate
indifference."); Traywick v. Thomas, 2017 WL 10276019, at *14 (M.D.
Ala.
Aug.
8,
2017)
(holding
deliberate
indifference
requires
something more than imperfect enforcement of a prison's no-smoking
policy).
policy
Instead, "the lack of enforcement of the existing smoking
at
best
shows
mere
negligence
demonstrate deliberate indifference."
and
is
insufficient
to
Brown v. Head, 190 F. App'x
808, 810 (11th Cir. 2006) (citing Farrow v. West, 320 F.3d 1235,
1243 (11th Cir. 2003)).
In conclusion, Plaintiff was failed to state a claim involving
smoke exposure.
Claim #3:
Classification, Counselor, & Financials
Naming Defendants Benton and Betterson, Plaintiff alleges he
was denied classification and was required to sign a ""waiver of
classification" during orientation. Plaintiff complains that no
counselor
has
been
assigned
to
him,
and
he
has
yet
to
be
classified, leading to his confinement within populations of gang
members and violent offenders.
(Compl. at 8-9.)
He names ""Chief
Councilor B. Kaigler" . . . ""since she is over all the councilors
who conduct orientation" responsible for this claim.
Also,
during
orientation.
Plaintiff
assistance with his financial documents.
was
unable
(Id. at 9.)
to
(Id. at 8-9.)
obtain
Because
his financials were not timely transferred to CSP, Plaintiff was
unable to purchase hygiene products, such as medicated shampoo,
toothpaste to combat his periodontal disease, dental floss, and
pain medication.
(Id.)
Regarding the failure to classify Plaintiff, the Court first
notes
that
inmates
have
no
protected
particular custody classification.
liberty
interest
in
a
See Meachum v. Fano, 427 U.S.
215, 223-25 (1976) (explaining that ""[c]onfinement in any of the
State's institutions is
within
the
normal limits
or range
of
custody which the conviction has authorized the State to impose");
Moody V. Daqqett, 429 U.S. 78, 88 n.9 (1976) (noting that Congress
has given prison officials full discretion to control conditions
of confinement, including prisoner classification). Consequently,
prison officials may assign inmates to any security classification
level they choose without necessarily violating any constitutional
right of the inmates.
Olim v. Wakinekona, 461 U.S. 238 (1983);
Meachum, 427 U.S. at 224; Hewitt v. Helms, 459 U.S. 460 (1983)
modified on other grounds by Sandin v. Conner, 515 U.S. 472, 481
(1995); see also Slezak v. Evatt, 21 F.3d 590, 594 (4th Cir. 1994)
(in the context of a claim based on a
custody classification,
holding that the U.S. Constitution affords no liberty interest in
a prisoner's custody classification).
Moreover, the Court has
found no precedent supporting the claim that the facility's failure
to provide Plaintiff with a counselor constitutes a viable § 1983
claim.3
As to Plaintiff's allegations that he was deprived of hygiene
products
because
financials,
he
of
the
likewise
facility's
fails
to
failure
state
a
to
claim.
transfer
The
his
Eighth
Amendment only proscribes those prison conditions which ''shock[]
the conscience," involve the ^'wanton and unnecessary infliction of
pain," or which are "grossly disproportionate to the severity of
the crime warranting imprisonment." Rhodes v. Chapman, 452 U.S.
337, 347 (1981); Sheley v. Duqqer, 833 F.2d 1420, 1429 (11th Cir.
1987).
The
failure
of
CSP
to
transfer
Plaintiff's
financial
3 Plaintiff here does not appear to be requesting an attorney to represent him
in criminal proceedings but rather appears to seek a prison counselor (spelled
by him as "councilor") to assist him in issues incidental to prison life.
9
information quickly, resulting in his temporary loss of hygiene
products,
does
not
state
a
claim
which
rises
to
the
level
prohibited by the Eighth Amendment.
Finally, in respect to this claim. Plaintiff failed to name
any actor who was directly responsible for anything alleged by
Plaintiff to be
unlawful, but rather seeks to hold individuals
accountable
their
in
supervisory
roles
only.
It
is
well
established in this circuit that supervisory officials are not
liable
under
subordinates
liability.
§
on
1983
the
for
basis
the
of
unconstitutional
acts
respondeat superior or
of
their
vicarious
Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.
1999) (internal quotation and citation omitted).
Thus, this claim
is dismissed as against Defendants Benton, Betterson, and Kaigler.
Claim §4:
Right to Grieve
Through this claim. Plaintiff alleges that he is being denied
access to the grievance procedure.
(Compl. at 9.)
According to
Plaintiff, Defendant Timothy Ward failed to force Defendant Benton
to
"abide
Plaintiff's
by
policy"
Fifth
and
regarding
Fourteenth
grievances
in
Amendment
violation
Rights.
of
(Id.)
Plaintiff also named Defendants Ward, Benton, and Barnwell in the
duplicative grievance-related claim, infra.
(Id. at 8; see n.2
infra.)
A supervisor is not "personally involved" in a constitutional
violation merely because he fails to respond to complaints from a
prisoner.
Asad v. Crosby, 158 F. App'x 166, 170-72 (11th Cir.
10
2005)
(affirming
district
court's
dismissal
of
supervisory
liability claims against two defendants who failed, inter alia,
''to
afford
because
[plaintiff]
the
record
relief
failed
during
to
the
show
grievance
that
they
process,"
"personally
participated in the alleged constitutional violations, or that
there was a causal connection between the supervisory defendants'
actions and an alleged constitutional violation").
Furthermore,
a
prisoner
has
no
participate in grievance procedures.
constitutional
right
to
See Wildberger v. Bracknell,
869 F.2d 1467, 1467-68 (11th Cir. 1989); Binqham v. Thomas, 654
F.3d 1171 (11th Cir. 2011) (affirming district court's dismissal
of Georgia state prisoner's § 1983 claim that prison's grievance
procedures were inadequate) (citing Adams v. Rice, 40 F.3d 72, 75
(4th
Cir.
1994)
("[T]he
Constitution
grievance procedures.")).
Claim #5:
creates
no entitlement to
Thus, this claim fails on its face.
Hostile Environment
Plaintiff alleges that Defendants Benton, Jones, and other
officers and staff ignored warnings of a generally hostile and
violent environment at CSP.
violent
although
offenders
they
in
posed
his
a
(Compl. at 10.)
dorm
were
threat.
not
(Id.)
He alleges that
removed
In
or
sanctioned,
protest
of
this
deficiency, he and other inmates attempted to "refuse housing,"
but
Defendant Sergeant Brown threatened them
until they relented.
(Id.)
11
with
pepper
spray
A
§
1983
plaintiff
awareness of risk" to
must
make
out
show
a
''more
deliberate
than
a
generalized
indifference
claim.
Marbury v. Warden, 936 F.3d 1227, 1234 (11th Cir. 2019) (citing
Caldwell v. Warden, 748 F.3d 1090, 1101 (11th Cir. 2014)).
While
"occasional, isolated attacks by one prisoner on another may not
constitute cruel and unusual punishment, . . . confinement in a
prison where violence and terror reign is actionable."
Purcell ex
rel. Estate of Morgan v. Toombs Cnty., 400 F.3d 1313, 1320 (11th
Cir. 2005) (quoting Woodhous v. Virginia, 487 F.2d 889, 890 (4th
Cir. 1973)); accord Harrison v. Culliver, 746 F.3d 1288, 1299 (11th
Cir.
2014).
To
establish
deliberate
indifference
based
on
a
generalized risk, the plaintiff must show "that serious inmateon-inmate violence was the norm or something close to it."
ex rel. Estate of Morgan, 400 F.3d at 1322.
Purcell
In his Complaint,
Plaintiff describes one isolated attack, i.e., Defendant Nicholas
Strickland's assault on Plaintiff.
Thus, he has failed to state
a claim of an unconstitutionally hostile prison environment.
Plaintiff also complains that he is at a generalized risk of
harm because he is surrounded by gang members.
However, Plaintiff
has not alleged consistent gang-related attacks or threats beyond
his own experience.
Cf. Lane v. Philbin, 835 F.3d 1302, 1307-08
(11th Cir. 2016) (holding that where a plaintiff alleged that a
particular prison building was composed of 90% gang members, it
was
common
for
the
non-gang-affiliated
inmates
or
non-Muslim
inmates to be robbed or stabbed, and the prison had inadequate
12
supervision to prevent inmates from making homemade weapons with
scrap metal brought from work detail, the plaintiff stated a claim
of deliberate indifference, but case was remanded to determine the
objective prong).
Accordingly, Plaintiff's allegations regarding
a more generalized ''hostile and violent environment" (see Compl.
at 10) fail.
Relatedly, to the extent Plaintiff alleges that
Defendant
Sergeant Brown engaged in unconstitutional excessive force when he
threatened
inmates
with
pepper
spray
until they
relented
from
engaging in noncompliant protests made in response to the "hostile
environment," Plaintiff's claim also fails.
Absent an allegation
that force was actually applied, there is obviously no violation.
Campbell
must
v. Sikes, 169 F.3d
prove
that
sadistically for
'force
the
very
1353,
was
1374
(11th
applied
purpose
of
.
.
Cir.1999) ("[S]he
.
causing
maliciously
and
harm.'" (quoting
Whitley v. Albers, 475 U.S. 312, 320-21 (1988))).
Claims #6 and #7:
Plaintiff
Defendant
Failure to Protect/Post-Assault Transfer
describes
Nicholas
being
Strickland,
assaulted
and
the
by
facts
incident serve as his sixth and seventh claim.
Plaintiff claims
Defendants Benton,
another
inmate.
surrounding
this
(Compl. at 11-12.)
Jones, and
Brown failed
to
protect him from Defendant Strickland, even though Plaintiff had
specifically warned Defendant Sergeant Brown that Strickland was
a
threat
to
him.
Plaintiff
alleges
Defendant
Brown
was
deliberately indifferent to the risk and failed to move Strickland
13
from his dorm.
Plaintiff was ultimately attacked by Strickland,
who also stole Plaintiff's tablet.
Plaintiff suffered a concussion
and did not receive aftercare follow-up for three weeks after the
assault.
Plaintiff did not immediately report the assault because
he was afraid.
Eventually Lieutenant Holland asked him about his
injury, so he reported it. Afterwards, Plaintiff was transferred
and housed in a new dorm, but near drug users.
Plaintiff asserts
that it would have been more proper for Strickland to have been
transferred.
He
blames
Defendant
Jones,
who
physically
transferred him, for violating his due process rights because he
transferred him instead of Strickland.
He alleges he was again
given no opportunity to grieve and had very few resources.
In
asserting
a
failure-to-protect
claim
under
the
Eighth
Amendment, a prisoner must advance factual allegations sufficient
to support the inference that he faces "a substantial risk of
serious harm" (the objective component) and that the responsible
prison
official
intended
that
he
be
harmed
or
was
at
least
consciously indifferent to the prisoner's safety (the subjective
component).
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chandler
V. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004).
Assuming for the purposes of frivolity review that Plaintiff
faced a substantial risk of serious harm regarding Strickland, he
only states a claim if the officials were deliberately indifferent
to the threat. See Chandler, 379 F.3d at 1289-90 (finding that an
official cannot be found liable under the Eighth Amendment unless
14
the official is both aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he
draws that
inference).
Plaintiff
here
fails
to
state
a
claim
against Defendants Benton and Jones, because he does not allege
that they were aware of the threat.
Furthermore, a defendant
cannot be held liable under § 1983 merely on a respondeat superior
or vicarious liability basis.
Monell v. Dep^t of Soc. Servs., 436
U.S. 658 (1978); Harvey v. Harvey, 949 F.2d 1127, 1129 (11th Cir.
1992).
Thus, claims against Defendants Benton and Jones are not
cognizable.
Liberally construing Plaintiff's Complaint, however,
he has stated a plausible claim against Defendant Brown because he
indicates
that
he
informed
Defendant
intended to assault him, the risk
was
Brown
that
Strickland
not addressed, and this
failure resulted in serious injury to Plaintiff.
As to the perpetrator of the assault. Defendant Strickland
did not act "under color of state law" when he attacked Plaintiff,
and therefore, claims against him are not cognizable under § 1983
either.
See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)
(holding that for a defendant's actions to be cognizable under §
1983, "the party charged with the deprivation must be a person who
may fairly be said to be a state actor").
Therefore, Defendant
Strickland is dismissed from this case.
With
claim.
respect to
his transfer.
Plaintiff fails to state
a
Plaintiff merely alleges that a CERT team member physically
transferred him but does not allege that the CERT team member was
15
responsible for the decision to transfer him; nor does he give any
other basis for his claim against him.
See Troupe v. Sarasota
Cnty. Fla., 419 F.3d 1160, 1165 (11th Cir. 2005) ("A § 1983 claim
requires proof of an affirmative causal connection between the
defendant's
acts
deprivation.").
or
omissions
and
the
alleged
constitutional
Even if Plaintiff amended his Complaint to name
a different defendant in this regard, the Due Process Clause ^'does
not protect every change in the conditions of confinement having
a substantial adverse impact on the prisoner."
at 478.
Sandin, 515 U.S.
''It is plain that the transfer of an inmate to less
amenable and more restrictive quarters for non-punitive reasons is
well within the terms of confinement ordinarily contemplated by a
prison sentence." Morrall v. Warden, 859 F. App'x 883, 884 (11th
Cir. 2021) (citing Hewitt, 459 U.S. at 468); see also Sandin, 515
U.S. at 481.
Nor has Plaintiff alleged any deprivation "so severe
that it essentially exceeds the sentence imposed by the court."
Waldman v. Conway, 871 F.3d 1283, 1290 (11th Cir. 2017) (citing
Kirby v. Siegelman, 195 F.3d 1285 (11th Cir. 1999) (per curiam).
Therefore, Plaintiff's due process claim regarding his transfer
after the assault fails.
Claim #8:
Failure to Enforce Contraband Policy
Plaintiff's final claim is similar to, if not duplicative of,
his complaint about the
generalized
risk
of
harm
at
CSP.
He
alleges that he has been damaged by the non-enforcement of policies
regarding contraband.
(Compl. at 12.)
16
According to Plaintiff,
items such as "jailbroken" tablets are used to communicate with
the
outside
world,
and
their
unregulated
existence
encourages
violence within the prison due to their value in this respect.
(Id.)
He specifically directs this claim to supervisors, alleging
that ''victims are created by the non-enforcement of existing polices
banning cell phones, jailbroken tablets, and weapons.''
that
his "right
to
a
safe
environment" is
He claims
diminished
because
Defendants Benton, Jones and other unidentified individuals fail to
enforce prison policies.
"Prison regulations . . . were never intended to confer rights
on Inmates or serve as a basis for constitutional claims." Brown v.
Richmond Cnty. Corr. Inst., 2006 WL 1431488, at '^2 (S.D. Ga. May 22,
2006) (citing Blakenship v. Kittle, 2003 WL 22048712, at *2 (N.D.
111. Aug. 6, 2003)).
Therefore, any constitutional claim raised by
Plaintiff regarding the mere violation of a prison rule, regulation,
or policy is subject to dismissal.
Instead, a prison official's
duty under the Eighth Amendment is to ensure "reasonable safety,"
"a
standard
that incorporates
due
regard for
prison
officials'
'unenviable task of keeping dangerous men in safe custody under
humane conditions.'" Farmer, 511 U.S. at 844-45 (citations omitted).
"[A] prison custodian is not the guarantor of a prisoner's safety."
Purcell ex rel. Morgan, 400 F.3d at 1321 (citation omitted).
Plaintiff fails to state a claim because he does not show that
Defendants Benton and Jones, or any other unidentified person, was
directly involved with the contraband crime problem at the prison.
17
See^ e.g., Glenn v. Williams^ 2017 WL 1356371, at *7 (S.D. Ga. Feb.
15, 2017) {''Plaintiff does not show that Defendants Deal and Bryson
were directly involved with the cell phone extortion ring by merely
alleging they viewed a letter and/or a grievance Plaintiff wrote
about
his
problem."); Asad,
158
F.
App'x
at
170-72 (affirming
district court's dismissal of supervisory liability claims against
two defendants who failed, inter alia, "to afford [plaintiff] relief
during the grievance process," because the record failed to show
that they "personally participated in the alleged constitutional
violations,
or
supervisory
defendants'
violation").
connection
that
there
Likewise,
a
actions
causal
and
Plaintiff
alleged
failed
constitutional
allege
a
causal
See Zatler v.
397,
401
the
to
the
violations, and his final claim must be dismissed.
F.2d
and
an
between
constitutional
802
Defendants
connection
asserted
Wainwriqht,
between
was
(11th
Cir.
1986)
(requiring
an
affirmative causal connection between a defendant and an alleged
constitutional violation).
Ill.
CONCLUSION
Upon the foregoing, IT IS HEREBY ORDERED that the portions of
the
Complaint
originating
at
GSDP
against
Defendants
Ford,
Unidentified Nurse #1, and Unidentified LPN #1 are hereby SEVERED
and TRANSFERRED to the Northern District of Georgia.
Plaintiff
has stated a failure to protect claim against Defendant Sergeant
Brown.
Therefore, process shall issue against him.
18
Any other
claims against Defendant Brown are dismissed.
Instructions for
the service of process will follow in a subsequent Order.
All other claims against all other Defendants are DISMISSED
to include all claims against Timothy Ward, Nicholas Strickland,
Z. Jones, C. Betterson, B. Barnwell, Brooks Benton, and B. Kaigler.
ia, this
ORDER ENTERED at Augusta, Georgia,
day of August,
2022.
UNITED STATES DISTRICT JUDG
19
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