SANTAIS v. CORRECTIONS CORPORATION OF AMERICA et al

Filing 20

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's claims against Defendants Correction Corporation of America, ("CCA"), Coffee Correctional Facility, and Warden Hilton Hall. I also RECOMMEND that the Court DISMISS Plaintiff's claims for compensatory and punitive damages indifference claims re 1 Complaint. I further RECOMMEND that the Court DENY Plaintiff's 14 MOTION for Permanent Injunction. The Court ORDERS any party seeking to ob ject to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 2/13/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/30/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

YVES SANTAIS,
Plaintiff,

CIVIL ACTION NO.: 5:16-cv-80

v.
CORRECTIONS CORPORATION OF
AMERICA, et al.,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Coffee Correctional Facility in Nicholls, Georgia,
submitted a Complaint in the above-captioned action pursuant to 42 U.S.C. § 1983. (Doc. 1.) I
have conducted the requisite frivolity review of this Complaint. For the reasons which follow, I
RECOMMEND that the Court DISMISS Plaintiff’s claims against Defendants Corrections
Corporation of America, (“CCA”), Coffee Correctional Facility, and Warden Hilton Hall. I also
RECOMMEND that the Court DISMISS Plaintiff’s claims for compensatory and punitive
damages and deliberate indifference claims. I further RECOMMEND that the Court DENY
Plaintiff’s Motion for Preliminary Injunction, (doc. 14). The Court DENIES Plaintiff’s Motion
for Production, (doc. 12), and Plaintiff’s Motion to Appoint a Translator, (doc. 13).
However, Plaintiff has stated a viable Eighth Amendment excessive force claim and state
law claims against Defendant Jones, and those claims shall proceed. Consequently, the Court
hereby ORDERS that the Complaint and this Order be served on Defendant Jones. The Court
provides additional instructions to Plaintiff and Defendant Jones pertaining to the future
litigation of this action, which the parties are urged to read and follow.

BACKGROUND 1
Plaintiff alleges that Defendant Officer Jones discharged “gaz” spray in the cafeteria of
Coffee Correctional Facility and then blocked over 25 prisoners, including Plaintiff, from exiting
the cafeteria. (Doc. 1, p. 6.) Plaintiff alleges that, as a result of his exposure to “gaz” spray, his
immune system was “impacted”, and he suffered chest pain and coughed up blood. (Id.) After
Plaintiff’s symptoms manifested, a prison nurse examined Plaintiff and immediately treated him.
(Id.)
Plaintiff contends that Defendant Officer Jones “engaged in excessive force, misconduct
and authority abuse against inmates” and that Defendant Warden Hall failed to investigate the
alleged incident after Plaintiff filed an administrative grievance. (Id. at p. 8.)
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. Under 28
U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment
of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows
an inability to pay the filing fee and also includes a statement of the nature of the action which
shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must
dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be
granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the
Court must review a complaint in which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is
frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
1

The Court takes the following facts from Plaintiff’s Complaint and accepts them as true, as it must at
this stage.
2

When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys, and
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
3

standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).
DISCUSSION
I.

Dismissal of Claims against Corrections Corporation of America
Plaintiff names Corrections Corporation of America, (“CCA”), as a Defendant,

apparently due to its role as employer of the other named Defendants. Though CCA is a private
entity, prison contractors are considered state actors. Therefore, CCA is subject to suit under
Section 1983. See Farrow v. West, 320 F.3d 1235, 1239 n.3 (11th Cir. 2003). However,
supervisors, employers, and private contractors cannot be sued under Section 1983 simply on a
theory of respondeat superior. Nesmith v. Corr. Corp. of Am., Civil Action No. CV507-043,
2007 WL 2453584, at *2 (S.D. Ga. Aug. 23, 2007) (holding that CCA, as private contractor who
runs prison, cannot be held liable under Section 1983 on respondeat superior or vicarious
liability basis). “Because vicarious liability is inapplicable to § 1983 actions, a plaintiff must
plead that each Government-official defendant, through the official’s own individual actions,
violated the Constitution.” Rosa v. Fla. Dep’t of Corr., 522 F. App’x 710, 714 (11th Cir. 2013)
(quoting Iqbal, 556 U.S. at 676) (internal quotations omitted). Therefore, to hold an employer
such as CCA liable, Plaintiff must demonstrate that either: (1) CCA actually participated in the
alleged constitutional violation, or (2) there is a causal connection between the actions of CCA
and the alleged constitutional violation. Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)
(citing Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990)). Here, Plaintiff does not allege

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that Defendant CCA actually participated in any purported constitutional violation. Similarly,
Plaintiff fails to allege a causal connection between Defendant CCA and the asserted
constitutional violations. See Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (per
curiam) (requiring an affirmative causal connection between a defendant and an alleged
constitutional violation).

Furthermore, Plaintiff has not alleged that CCA implemented an

improper custom or policy, directed its subordinates to act unlawfully, or knew they would act
unlawfully and failed to stop them from doing so. Thus, Plaintiff has failed to allege any facts
that would result in liability for CCA, and the Court should DISMISS Plaintiff’s claims against
CCA.
II.

Dismissal of Claims against Coffee Correctional Facility
In order to state a claim for relief under Section 1983, a plaintiff must satisfy two

elements. First, a plaintiff must allege that an act or omission deprived him “of some right,
privilege, or immunity secured by the Constitution or laws of the United States.” Hale v.
Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act
or omission was committed by “a person acting under color of state law.” Id. While local
governments qualify as “persons” under Section 1983, state agencies and penal institutions are
generally not considered legal entities subject to suit. See Grech v. Clayton Cty., 335 F.3d 1326,
1343 (11th Cir. 2003). Consequently, a prison is not a viable defendant under Section 1983.
Williams v. Chatham Cty. Sherriff’s Complex, Case No. 4:07-cv-68, 2007 WL 2345243 (S.D.
Ga. Aug. 14, 2007) (“The county jail, however, has no independent legal identity and therefore is
not an entity that is subject to suit under Section 1983.”). Accordingly, the Court should
DISMISS Plaintiff’s claims against Coffee Correctional Facility.

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III.

Dismissal of Supervisory Liability Claims against Defendant Hall
Section 1983 liability must be based on something more than a defendant’s supervisory

position or a theory of respondeat superior. Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir.
2009); Braddy v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th Cir. 1998). A
supervisor may be liable only through personal participation in the alleged constitutional
violation or when there is a causal connection between the supervisor’s conduct and the alleged
violations. Id. at 802. “To state a claim against a supervisory defendant, the plaintiff must allege
(1) the supervisor’s personal involvement in the violation of his constitutional rights, (2) the
existence of a custom or policy that resulted in deliberate indifference to the plaintiff’s
constitutional rights, (3) facts supporting an inference that the supervisor directed the unlawful
action or knowingly failed to prevent it, or (4) a history of widespread abuse that put the
supervisor on notice of an alleged deprivation that he then failed to correct.” Barr v. Gee, 437 F.
App’x 865, 875 (11th Cir. 2011).
It appears Plaintiff wishes to hold Defendant Hall liable based solely on his supervisory
position at Coffee Correctional Facility.

He does not make any factual allegations that

Defendant Hall directly participated in or was otherwise causally connected to the alleged
deprivation of his constitutional rights. For example, he states that Defendant Hall is “legally
responsible for the operation of [the prison] . . . [and] the protection and welfare of all inmates of
that prison.” (Doc. 1, p. 8.) As set forth above, such supervisory allegations are an insufficient
basis for Section 1983 liability. Therefore, the Court should DISMISS Plaintiff’s claims against
Defendant Hall.

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IV.

Dismissal of Claims for Compensatory and Punitive Damages
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other

correctional facility, for mental or emotional injury suffered while in custody without a prior
showing of physical injury.” 42 U.S.C. § 1997e(e). The purpose of this statute is “to reduce the
number of frivolous cases filed by imprisoned plaintiffs, who have little to lose and excessive
amounts of free time with which to pursue their complaints.” Napier v. Preslicka, 314 F.3d 528,
531 (11th Cir. 2002) (citing Harris v. Garner, 216 F.3d 970, 976–79 (11th Cir. 2000)).
“Tracking the language of [this] statute, § 1997e(e) applies only to lawsuits involving (1) Federal
civil actions (2) brought by a prisoner (3) for mental or emotional injury (4) suffered while in
custody.” Id. at 532.
In Williams v. Brown, 347 F. App’x 429, 436 (11th Cir. 2009), the Eleventh Circuit
stated that, “compensatory damages under § 1983 may be awarded only based on actual injuries
caused by the defendant and cannot be presumed or based on the abstract value of the
constitutional rights that the defendant violated. Pursuant to 42 U.S.C. § 1997e(e), in order to
recover for mental or emotional injury suffered while in custody, a prisoner bringing a § 1983
action must demonstrate more than a de minim[i]s physical injury.” Id. (internal citations
omitted) (alterations in original). Consequently, a prisoner that has not suffered more than de
minimis physical injury cannot recover compensatory or punitive damages. Al-Amin v. Smith,
637 F.3d 1192, 1199 (11th Cir. 2011) (“In sum, our published precedents have affirmed district
court dismissals of punitive damage claims under the PLRA because the plaintiffs failed to meet
§ 1997e(e)’s physical injury requirement.”); Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir.
2007) (“Plaintiff seeks nominal, compensatory, and punitive damages. It is clear from our case
law, however, that the latter two types of damages are precluded under the PLRA.”), abrogated

7

on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011). “In order to avoid dismissal
under § 1997e(e), a prisoner’s claims for emotional or mental injury must be accompanied by
allegations of physical injuries that are greater than de minimis.”

Mitchell v. Brown &

Williamson Tobacco Corp., 294 F.3d 1309, 1312–13 (11th Cir.2002). “The meaning of the
phrase ‘greater than de minimis,’ however, is far from clear.” Chatham v. Adcock, 334 F. App’x
281, 284 (11th Cir. 2009).
In this case, Plaintiff has only alleged de minimis physical injury resulting from
Defendants’ alleged excessive use of force. Plaintiff claims that Defendant Jones sprayed him
(presumably with pepper spray). However, he states only that he suffered a sore throat and pain
in his lungs, that he coughed up blood twice, and that the pepper spray had an “impact” on his
immune system. (Doc. 1, p. 6.) Several courts have held that the typical effects associated with
pepper spray, such as temporary burning of the skin and difficulty breathing, are not sufficient to
satisfy Section 1997(e)’s physical injury requirement. See, e.g., Jennings v. Mitchell, 93 F.
App’x 723, 725 (6th Cir. 2004) (finding that prisoner who suffered the discomfort of pepper
spray had shown only de minimis injury, insufficient to satisfy § 1997e(e)); Kirkland v.
Everglades Corr. Inst., No. 12-22302-CIV, 2014 WL 1333212, at *6 (S.D. Fla. Mar. 31, 2014)
(“If [plaintiff] experienced temporary chemical burns and minor respiratory problems from
exposure to a chemical agent, he then sustained only minor, physical injuries from the chemical
spray.”); Magwood v. Tucker, No. 3:12cv140/RV/CJK, 2012 WL 5944686, at *5 (N.D. Fla.
Nov. 14, 2012) (prisoner failed to show more than a de minimis physical injury resulting from
officer’s use of chemical agent where he alleged he suffered bloody nose and bloody phlegm);
Kornagay v. Burt, No. 3:09cv281/LAC/EMT, 2011 WL 839496 (N.D. Fla. Feb. 8, 2011)
(prisoner failed to show more than a de minimis physical injury resulting from officer’s use of

8

chemical agent where prisoner alleged he suffered burning lungs and skin, congested breathing,
tearing eyes, nasal discharge, dizziness, the sensation of respiratory distress, choking, and burns
to his scalp); Beecher v. Jones, No. 3:08cv416/MCR/EMT, 2010 WL 5058555, at *5–6 (N.D.
Fla. Oct. 29, 2010) (prisoner who alleged no physical injury arising from use of chemical agents
failed to show requisite physical injury under § 1997e(e)); see also Osterback v. Ingram, No.
3:96cv580/LAC/SMN, 2000 WL 297840, at *10 (N.D. Fla. Jan.12, 2000) (plaintiff unable to
recover compensatory or punitive damages with respect to injuries caused by placement in
disciplinary confinement or close management, pursuant to § 1997e(e)), where plaintiff’s
physical injuries, including “extreme pain and suffering from being exposed to residual chemical
fumes” which caused him to suffer a “serious, debilitating sinus condition,” and “overall loss of
muscle tone, a gaining of body fat, a loss of cardiovascular and pulmonary health, developed
skin and scalp conditions, . . . migraine headaches, bouts of sleeplessness and listless[ness],
among other things,” were not more than de minimis).
In this case, Plaintiff does not describe any lasting effects of his exposure to pepper spray
such as continued pain, and the only treatment he describes is a nurse’s order that he drink water
and take his blood pressure medication. (Doc. 1, p. 7.) Because Plaintiff has failed to allege that
Defendant Jones’ actions caused more than a de minimis injury, the Court should DISMISS his
claims for compensatory and punitive damages.
V.

Dismissal of Deliberate Indifference to Medical Needs Claims
The cruel and unusual punishment standard of the Eighth Amendment requires prison

officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994). Generally speaking, however, “prison conditions
rise to the level of an Eighth Amendment violation only when they involve the wanton and

9

unnecessary infliction of pain.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)
(quotations omitted). Thus, not all deficiencies and inadequacies in prison conditions amount to
a violation of a prisoner’s constitutional rights. Rhodes v. Chapman, 452 U.S. 337, 349 (1981).
The Constitution does not mandate comfortable prisons. Id. Prison conditions violate the Eighth
Amendment only when the prisoner is deprived of “the minimal civilized measure of life’s
necessities.” Id. at 347. However, “[c]ontemporary standards of decency must be brought to
bear in determining whether a punishment is cruel and unusual.” Bass v. Perrin, 170 F.3d 1312,
1316 (11th Cir. 1999).
In the medical care context, the standard for cruel and unusual punishment, embodied in
the principles expressed in Estelle v. Gamble, 429 U.S. 97, 104 (1976), is whether a prison
official exhibits a deliberate indifference to the serious medical needs of an inmate. Farmer, 511
U.S. at 828. However, “not every claim by a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment.” Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991) (quoting Estelle, 429 U.S. at 105). Rather, “an inmate must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994).
In order to prove a deliberate indifference to medical care claim, a prisoner must
overcome three obstacles. The 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 Cty., 510 F.3d
1312, 1326 (11th Cir. 2007). A medical need is serious if it “‘has been diagnosed by a physician
as mandating treatment or [is] one that is so obvious that even a lay person would easily

10

recognize the necessity for a doctor’s attention.’” Id. (quoting Hill, 40 F.3d at 1187). As for the
subjective component, the Eleventh Circuit has consistently required that “a defendant know of
and disregard an excessive risk to an inmate’s health and safety.” Haney v. City of Cumming, 69
F.3d 1098, 1102 (11th Cir. 1995). Under the subjective prong, an inmate “must prove three
things: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than [gross] negligence.” Goebert, 510 F.3d at 1327.
In his Complaint, Plaintiff alleges that, after Defendant Jones exposed him to spray
fumes, Plaintiff experienced chest pain and coughed up blood. Because a lay person could easily
recognize the necessity for medical attention based upon those conditions, Plaintiff has arguably
shown that he had a serious medical need. (Doc. 1, p. 6.) However, Plaintiff does not allege that
any named Defendant knew that he suffered chest pain or coughed up blood. Accordingly,
Plaintiff has not shown that any Defendant had subjective knowledge of a risk of serious harm,
and his claim should fail on that basis.
Moreover, even assuming, arguendo, that Defendants had knowledge of a risk of serious
harm to Plaintiff’s health as a result of his exposure to “gaz” spray, Plaintiff has not shown that
the risk to his health was disregarded. Plaintiff concedes that a nurse on duty examined him,
checked his blood pressure, gave him water and medication, and scheduled an appointment for
Plaintiff to see a doctor. Plaintiff’s contention that he should have been seen by a doctor in
addition to a nurse falls far short of approaching the standard required for deliberate indifference
to serious medical needs. See Goebert, 510 F.3d at 1326; see also Nimmons v. Aviles, 409 F.
App’x 295, 297 (11th Cir. 2011) (“‘[A]ccidental inadequacy, negligence in diagnosis or
treatment, [and] medical malpractice’” are insufficient to sustain a claim of deliberate
indifference[.]). Accordingly, for all these reasons, Plaintiff fails to state a cognizable federal

11

claim for denial of medical care. The Court should, therefore, DISMISS Plaintiff’s Eighth
Amendment deliberate indifference claims.
VI.

Excessive Force Claims
The Eighth Amendment’s proscription against cruel and unusual punishment governs the

amount of force that prison officials are entitled to use against inmates. Campbell v. Sikes, 169
F.3d 1353, 1374 (11th Cir. 1999). An excessive force claim has two requisite parts: an objective
and a subjective component. Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994). In order to
satisfy the objective component, the inmate must show that the prison official’s conduct was
“sufficiently serious.” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)). The subjective component requires a showing that the force used was “maliciously and
sadistically for the very purpose of causing harm” rather than “a good faith effort to maintain or
restore discipline.” Whitley v. Albers, 475 U.S. 312, 320–21 (1986). In order to determine
whether the force was used for the malicious and sadistic purpose of causing harm or whether the
force was applied in good faith, courts consider the following factors: the need for the exercise of
force, the relationship between the need for force and the force applied, the extent of injury that
the inmate suffered, the extent of the threat to the safety of staff and other inmates, and any
efforts taken to temper the severity of a forceful response. Skelly v. Okaloosa Cty. Bd. of Cty.
Comm’rs, 456 F. App’x 845, 848 (11th Cir. 2012) (quoting Fennell v. Gilstrap, 559 F.3d 1212,
1217 (11th Cir. 2009)).
Plaintiff has made sufficient allegations to state a plausible claim that Defendant Jones
used excessive force against him on the date of the incident. He alleges that Defendant Jones
confined Plaintiff in the cafeteria after spraying that room with “gaz” spray, and that Defendant
Jones did so without any provocation or other reason. This claim survives frivolity review.

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VII.

State Law Claims
Plaintiff has arguably asserted pendent state claims of battery, false imprisonment, and

intentional infliction of emotional distress against Defendant Jones.
28 U.S.C. § 1367(a) provides a federal court with supplemental jurisdiction over claims
that are so related to a plaintiff’s federal claims that they form part of the same case or
controversy.

“The Constitutional ‘case or controversy’ standard confers supplemental

jurisdiction over all state law claims which arise out of a common nucleus of operative fact.”
Lucero v. Trosch, 121 F.3d 591, 597 (11th Cir. 1997) (citing United Mine Workers v. Gibbs, 383
U.S. 715, 724–25 (1966)). A District Court can decline to exercise supplemental jurisdiction
over a pendent state claim under 28 U.S.C. § 1367(c) if:
(1) the claim raises a novel or complex issue of state law;
(2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction;
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
“In determining whether [dismissal] is appropriate under any of these four categories the
Court must make a case specific analysis and consider factors including judicial economy,
convenience, fairness to litigants, and comity. Gibbs, 383 U.S. at 726.
In a proceeding before a district court upon a federal cause of action, the court has
substantial discretion in determining whether to exercise supplemental jurisdiction over pendent
state-law claims.

28 U.S.C. § 1367; Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89

(11th Cir. 2004) (per curiam).

This discretion survives even where all federal claims are

dismissed. Raney, 370 F.3d at 1088–89; see also Palmer v. Hosp. Auth., 22 F.3d 1559, 1567–68
(11th Cir. 1994). Ordinarily, when all federal claims are eliminated before trial, the district court

13

should decline to exercise jurisdiction over the remaining state-law claims. Carnegie–Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7, (1988). Nevertheless, the decision ultimately rests within
the district court’s discretion, to be guided by considerations of judicial economy, fairness,
comity, and convenience. Id.; see also Casey v. City of Miami Beach, 805 F. Supp. 2d 1361,
1362 (S.D. Fla. 2011) (declining to remand where factors favored retention of jurisdiction though
federal claims were dismissed).
This Court frequently adjudicates state law claims of battery, false imprisonment and
intentional infliction of emotional distress, and none of those claims raise novel or complex
issues. Furthermore, none of these claims substantially predominate over Plaintiff’s remaining
federal claim. Moreover, not all federal claims have been dismissed as Plaintiff’s federal claim
against Defendant Jones remains before the Court. Finally, the convenience and fairness to the
litigants of addressing the claims in this forum outweigh any concerns of comity. Therefore, the
Court exercises its discretion to maintain jurisdiction over Plaintiffs’ state law claims of battery,
false imprisonment, and intentional infliction of emotional distress against Defendant Jones, and
those claims shall proceed.
VIII. Plaintiff’s Motion for a Preliminary and Permanent Injunction (Doc. 14)
In his Motion for a Preliminary Injunction, Plaintiff requests that the Court demote
Defendant Jones from the rank of Captain and bar him from interacting with inmates. (Doc. 14,
p. 1.) Plaintiff also requests that the Court order Defendant Jones to undergo a psychological
evaluation. To be entitled to a temporary restraining order or preliminary injunction, a plaintiff
must demonstrate: (1) a substantial likelihood of ultimate success on the merits; (2) that a
restraining order or injunction is necessary to prevent irreparable injury; (3) that the threatened
injury outweighs the harm that the restraining order or injunction would inflict on the other

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party; and (4) that the restraining order or injunction would not be adverse to the public interest.
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005).
Similarly, a plaintiff requesting a permanent injunction must satisfy the following fourfactor test:
(1) that [the plaintiff] has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to compensate for
that injury; (3) that, considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Thus, “[t]he standard for a
permanent injunction is essentially the same as for a preliminary injunction except that the
plaintiff must show actual success on the merits instead of a likelihood of success.” Siegel v.
LePore, 234 F.3d 1163, 1213 (11th Cir. 2000) (Carnes, J., dissenting). In either case, an
“injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly
established the ‘burden of persuasion’ as to the four requisites.” Horton v. City of Augustine,
272 F.3d 1318, 1326 (11th Cir. 2001).
If a plaintiff succeeds in making such a showing, then “the court may grant injunctive
relief, but the relief must be no broader than necessary to remedy the constitutional violation.”
Newman v. State of Ala., 683 F.2d 1312, 1319 (11th Cir. 1982). Accordingly, where there is a
constitutional violation in the prison context, courts traditionally are reluctant to interfere with
prison administration and discipline, unless there is a clear abuse of discretion. See Procunier v.
Martinez, 416 U.S. 396, 404–05 (1974) (“Traditionally, federal courts have adopted a broad
hands-off attitude toward problems of prison administration [because] . . . courts are ill equipped
to deal with the increasingly urgent problems of prison administration and reform.”), overruled
on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). In such cases, “[d]eference to

15

prison authorities is especially appropriate.” Newman, 683 F.2d at 1320–21 (reversing district
court’s injunction requiring release of prisoners on probation because it “involved the court in
the operation of the State’s system of criminal justice to a greater extent than necessary” and less
intrusive equitable remedy was available).
Plaintiff has not shown that he has satisfied the prerequisites in order to be entitled to a
preliminary or permanent injunction. Specifically, Plaintiff has not shown the likelihood of
success on the merits of his claims. Moreover, Plaintiff has not demonstrated that he faces a
threat of future injury or that his requested relief as to Defendant Jones is necessary to prevent
such an injury. Therefore, the Court should DENY his request for a preliminary injunction.
IX.

Motion for Production, (doc. 12), and Motion to Appoint a Translator, (doc. 13)
Plaintiff requests that the Court order Defendants to produce surveillance camera footage

of the cafeteria, Plaintiff’s medical records, and all other materials relevant to his claims. (Doc.
12, pp. 1–2.) This action is only now being subjected to frivolity review, and none of the
Defendants named in Plaintiff’s Complaint have been served. For this reason, Plaintiff’s Motion
is premature, and the Court DENIES this Motion (doc. 12). However, upon service of his
Complaint, Plaintiff may request a copy of these materials from Defendant through discovery.
Plaintiff is instructed to read and follow the Court’s below instructions regarding discovery.
Finally, Plaintiff requests that the Court appoint a translator to translate from English to
French or French-Creole, as he has “a language barrier and a strong accent” and has only
“learned broken English during his confinement.” (Doc. 13.) However, Plaintiff provides no
legal basis for his translator request. “Although plaintiff was granted in forma pauperis status,
‘there is no specific statute which authorizes the court to appoint an interpreter in civil in forma
pauperis actions.’” Velez v. Burge, No. 08-CV-00806(M), 2009 WL 3459744, at *2 (W.D.N.Y.

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Oct. 20, 2009) (quoting Mendoza v. Blodgett, No. C-89-770-JMH, 1990 WL 263527, at *15
(E.D. Wash. Dec. 21, 1990)). Moreover, “‘pro se civil litigants have no entitlement to an
interpreter or translator.’” Id. (quoting Fessehazion v. Hudson Grp., No. 08 CIV.10665 BSJ
RLE, 2009 WL 2596619, at *2 (S.D.N.Y. Aug. 21, 2009)). Finally, Plaintiff’s filings and
communications with the Court thus far indicate no difficulty proceeding in English.
Accordingly, the Court DENIES his Motion for appointment of a translator (doc. 13).
CONCLUSION
For the reasons set forth above, I RECOMMEND that the Court DISMISS Plaintiff’s
claims against Defendants Corrections Corporation of America, (“CCA”), Coffee Correctional
Facility, and Warden Hilton Hall. I also RECOMMEND that the Court DISMISS Plaintiff’s
claims for compensatory and punitive damages and deliberate indifference claims. I further
RECOMMEND that the Court DENY Plaintiff’s requests for injunctive relief. The Court
DENIES Plaintiff’s Motion for Production, (doc. 12), and Plaintiff’s Motion to Appoint a
Translator, (doc. 13).
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.

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Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff.
REMAINING CLAIMS AND DEFENDANT
Plaintiff’s allegations in his Complaint arguably state colorable claims for relief under 42
U.S.C. § 1983 for an excessive use of force Defendant Jones. Consequently, a copy of Plaintiff’s
Complaint and a copy of this Order shall be served upon Defendant Jones by the United States
Marshal without prepayment of cost. The Court also provides the following instructions to the
parties that will apply to the remainder of this action and which the Court urges the parties to
read and follow.
INSTRUCTIONS TO DEFENDANT
Because Plaintiff is proceeding in forma pauperis, the undersigned directs that the United
States Marshal effect service. Fed. R. Civ. P. 4(c)(3). In most cases, the marshal will first mail a
copy of the complaint to the Defendant by first-class mail and request that the Defendant waive
formal service of summons. Fed. R. Civ. P. 4(d); Local Rule 4.7. Individual and corporate
defendants have a duty to avoid unnecessary costs of serving the summons, and any such
defendant who fails to comply with the request for waiver must bear the costs of personal service

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unless good cause can be shown for the failure to return the waiver. Fed. R. Civ. P. 4(d)(2).
Generally, a defendant who timely returns the waiver is not required to answer the complaint
until sixty (60) days after the date that the marshal sent the request for waiver. Fed. R. Civ. P.
4(d)(3).
IT IS FURTHER ORDERED that Defendant is hereby granted leave of court to take
the deposition of the Plaintiff upon oral examination. Fed. R. Civ. P. 30(a). Defendant is further
advised that the Court’s standard 140 day discovery period will commence upon the filing of the
last answer. Local Rule 26.1. Defendant shall ensure that all discovery, including the Plaintiff’s
deposition and any other depositions in the case, is completed within that discovery period.
In the event that Defendant takes the deposition of any other person, Defendant is ordered
to comply with the requirements of Federal Rule of Civil Procedure 30. As the Plaintiff will
likely not be in attendance for such a deposition, Defendant shall notify Plaintiff of the
deposition and advise him that he may serve on Defendant, in a sealed envelope, within ten (10)
days of the notice of deposition, written questions the Plaintiff wishes to propound to the
witness, if any. Defendant shall present such questions to the witness seriatim during the
deposition. Fed. R. Civ. P. 30(c).
INSTRUCTIONS TO PLAINTIFF
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendant or, if
appearance has been entered by counsel, upon his attorney, a copy of every further pleading or
other document submitted for consideration by the Court. Plaintiff shall include with the original
paper to be filed with the Clerk of Court a certificate stating the date on which a true and correct
copy of any document was mailed to Defendant or his counsel. Fed. R. Civ. P. 5. “Every
pleading shall contain a caption setting forth the name of the court, the title of the action, [and]

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the file number.” Fed. R. Civ. P. 10(a).
Plaintiff is charged with the responsibility of immediately informing this Court and
defense counsel of any change of address during the pendency of this action. Local Rule 11.1.
Plaintiff’s failure to notify the Court of a change in his address may result in dismissal of this
case.
Plaintiff has the responsibility for pursuing this case. For example, if Plaintiff wishes to
obtain facts and information about the case from Defendant, Plaintiff must initiate discovery.
See generally, Fed. R. Civ. P. 26, et seq. The discovery period in this case will expire 140 days
after the filing of the last answer. Local Rule 26.1. Plaintiff does not need the permission of the
Court to begin discovery, and Plaintiff should begin discovery promptly and complete it within
this time period. Local Rule 26.1. Discovery materials should not be filed routinely with the
Clerk of Court; exceptions include: when the Court directs filing; when a party needs such
materials in connection with a motion or response, and then only to the extent necessary; and
when needed for use at trial. Local Rule 26.4.
Interrogatories are a practical method of discovery for incarcerated persons. See Fed. R.
Civ. P. 33. Interrogatories may be served only on a party to the litigation, and, for the purposes
of the instant case, this means that interrogatories should not be directed to persons or
organizations who are not named as Defendants. Interrogatories are not to contain more than
twenty-five (25) questions. Fed. R. Civ. P. 33(a). If Plaintiff wishes to propound more than
twenty-five (25) interrogatories to a party, Plaintiff must have permission of the Court. If
Plaintiff wishes to file a motion to compel, pursuant to Federal Rule of Civil Procedure 37, he
should first contact the attorneys for Defendant and try to work out the problem; if Plaintiff
proceeds with the motion to compel, he should also file a statement certifying that he has

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contacted opposing counsel in a good faith effort to resolve any dispute about discovery. Fed. R.
Civ. P. 26(c); 37(a)(2)(A); Local Rule 26.7.
Plaintiff has the responsibility for maintaining his own records of the case. If Plaintiff
loses papers and needs new copies, he may obtain them from the Clerk of Court at the standard
cost of fifty cents ($.50) per page. If Plaintiff seeks copies, he should request them directly
from the Clerk of Court and is advised that the Court will authorize and require the
collection of fees from his prison trust fund account to pay the cost of the copies at the
aforementioned rate of fifty cents ($.50) per page.
If Plaintiff does not press his case forward, the court may dismiss it for want of
prosecution. Fed. R. Civ. P. 41; Local Rule 41.1.
It is Plaintiff’s duty to cooperate fully in any discovery which may be initiated by
Defendant. Upon no less than five (5) days’ notice of the scheduled deposition date, the Plaintiff
shall appear and permit his deposition to be taken and shall answer, under oath or solemn
affirmation, any question which seeks information relevant to the subject matter of the pending
action. Failing to answer questions at the deposition or giving evasive or incomplete responses
to questions will not be tolerated and may subject Plaintiff to severe sanctions, including
dismissal of this case.
As the case progresses, Plaintiff may receive a notice addressed to “counsel of record”
directing the parties to prepare and submit a Joint Status Report and a Proposed Pretrial Order.
A plaintiff proceeding without counsel may prepare and file a unilateral Status Report and is
required to prepare and file his own version of the Proposed Pretrial Order. A plaintiff who is
incarcerated shall not be required or entitled to attend any status or pretrial conference which
may be scheduled by the Court.

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ADDITIONAL INSTRUCTIONS TO PLAINTIFF REGARDING
MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT
Under this Court’s Local Rules, a party opposing a motion to dismiss shall file and serve
his response to the motion within fourteen (14) days of its service. “Failure to respond shall
indicate that there is no opposition to a motion.” Local Rule 7.5. Therefore, if Plaintiff fails to
respond to a motion to dismiss, the Court will assume that he does not oppose the Defendant’s
motion. Plaintiff’s case may be dismissed for lack of prosecution and failure to follow the
court’s orders if Plaintiff fails to respond to a motion to dismiss.
Plaintiff’s response to a motion for summary judgment must be filed within twentyone (21) days after service of the motion. Local Rules 7.5, 56.1. The failure to respond to such a
motion shall indicate that there is no opposition to the motion. Furthermore, each material fact
set forth in the Defendant’s statement of material facts will be deemed admitted unless
specifically controverted by an opposition statement.

Should Defendant file a motion for

summary judgment, Plaintiff is advised that he will have the burden of establishing the existence
of a genuine dispute as to any material fact in this case. That burden cannot be carried by
reliance on the conclusory allegations contained within the complaint. Should the Defendant’s
motion for summary judgment be supported by affidavit, Plaintiff must file counter-affidavits if
he desires to contest the Defendant’s statement of the facts. Should Plaintiff fail to file opposing
affidavits setting forth specific facts showing that there is a genuine dispute for trial, any factual
assertions made in Defendant’s affidavits will be accepted as true and summary judgment may

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be entered against the Plaintiff pursuant to Federal Rule of Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this 30th day of January,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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