Mapp v. Georgia Department of Corrections et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 17 Report and Recommendations. Plaintiff's claims against Dasher, Upton, Burnette, and the Georgia Department of Corrections are dismissed. Signed by Judge B. Avant Edenfield on 4/12/2012. (loh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA2
STATESBORO DIVISION

AR I , All III:

A/

...................
AL RICO MAPP,
Plaintiff,

CIVIL ACTION NO. :CV611-124

V,

GEORGIA DEPARTMENT OF
CORRECTIONS; STEVEN
UPTON; JOE BURNETTE;
DANE DASHER; and
ALTON MOBLEY,
Defendants.

ORDER
Following three extensions of time, Plaintiff Al Rico Mapp ("Plaintiff') filed, by and
through his counsel, Objections to the Magistrate Judge's Report dated January 19,
2012, which recommended that Plaintiff's claims against Defendants Dasher, Upton,
Burnette, and the Georgia Department of Corrections be dismissed. After an
independent and de nova review of the record, the undersigned concurs with the
Magistrate Judge's Report and Recommendation.

I. Plaintiff objects to the Magistrate Judge's recommendation of dismissal
of Plaintiff's claims for constitutional violations against Defendants Upton,
Dasher, and Burnette based on Plaintiffs failure to make factual allegations
against those Defendants with regard to Defendant Mobley's alleged use of
excessive force.
In support of that objection, Plaintiff seemingly makes three arguments. First,
Plaintiff asks the Court to recognize that "acts which are in implementation of an
intentional policy, . . formal or informal, acknowledged or vigorously denied" create a

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cause of action when the "governing body has worked constitutional deprivation"
pursuant to the policy. (Doc. No. 35, p. 2) (quoting Cit y of Cave Spring v. Mason, 310
S.E.2d 892, 893-94 (Ga. 1984) (emphasis supplied by the undersigned to properly
conform the quote to the original). Plaintiff has cited no intentional policy allegedly
being implemented by the Defendants in this case. Instead, Plaintiff vaguely alleges
that "there have been numerous other instances of excessive force and failure to protect
inmates[.]" (Doc. No. 35, p. 3). However, an allegation of other instances of
misconduct does not allege a policy upon which Defendants acted in furtherance.
Second, Plaintiff states that a supervisory official may be liable under 42 U.S.C. §
1983 for an injury resulting from his failure to train or supervise' subordinates if "the
failure has actually caused the injury of which the plaintiff complains." (Doc. No. 35, p.
2)(citing Belcher v. Citvof Foley, 30 F.3d 1390, 1397 (llth Cir. 1994)). Plaintiff has not
alleged facts tending to show that Upton, Dasher, and Burnette were responsible for
training Defendant Mobley. And Plaintiff has not alleged any facts tending to show that
the failure of Upton, Dasher, and Burnette to stop the alleged excessive force by
Defendant Mobley actually caused the alleged excessive force by Defendant Mobley.
Third, Plaintiff avers that supervisory liability may be imposed upon the
Defendants. However, Plaintiff did not bring a claim for supervisory liability in his
Complaint. Even overlooking that failure, Plaintiff's allegations do not state a claim for
supervisory liability. "[S]upervisory liability is appropriate under § 1983 either when the
supervisor personally participates in the alleged constitutional violation or when there is
a causal connection between actions of the supervising official and the alleged

should be noted that Plaintiff's support for this assertion, Belcher v. City of Foley, 30 F.3d 1390, 1397
(1 lth Cir. 1994), discussed only a failure to train and did not discuss a failure to supervise.
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constitutional violation. Facts sufficient to establish a causal connection include those
which support an inference that the supervisor directed the subordinates to act
unlawfully or knew that the subordinates would act unlawfully and failed to stop them
from doing so." Young v. Nichols, 398 F. Appx 511, 515 (11th Cir. 2010) (internal
quotation marks and citations omitted). Plaintiff does not allege that Upton, Dasher, and
Burnette personally participated in the alleged use of excessive force by Defendant
Mobley. Plaintiff does not allege that Upton, Dasher, and Burnette directed Mobley's
alleged actions. Plaintiff cites to a 1998 Eleventh Circuit Court of Appeals case for the
proposition that a "causal connection may be established when the supervisor is well
aware of a history of widespread abuse and falls to correct alleged violations." (Doc.
No. 35, p. 3) (internal quotation marks and citations omitted). Seemingly, Plaintiff
intended to argue that a history of widespread abuse can result in a defendant's
knowledge that his subordinates would act unlawfully, the second method of
establishing a causal connection under the Young test. Plaintiff has not alleged any
facts tending to show that there is a history of widespread abuse at Georgia State
Prison. Instead, Plaintiff vaguely alleges that "there have been numerous other
instances of excessive force and failure to protect inmates," (Doc. No. 35, p. 3), and that
witnesses will testify in support of that allegation, (Doc. No. 35, p. 5). The only fact
presented by Plaintiff is that he has filed/will file four lawsuits in two years, which is
insufficient to "show[ ] that [he] is entitled to relief," Fed. R. Civ. P. 8(a)(2), against
Upton, Dasher, and Burnette based on knowledge that their subordinate, Defendant
Mobley, would act unlawfully.

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II. Plaintiff objects to the Magistrate Judge's recommendation of dismissal
of Plaintiff's state law claims against Defendants Upton, Dasher, and Burnette
based on lack of jurisdiction.
Plaintiff asserts that the Court has supplemental jurisdiction, pursuant to 28
U.S.C. § 1367, over his state law claims against Upton, Dasher, and Burnette, "by virtue
of the federal question asserted in Plaintiff's section 1983 claim in this matter." (Doc.
No. 35, p. 6). Because the Court agrees with the Magistrate Judge's determination that
Plaintiff has failed to state a claim for relief under § 1983 against Upton, Dasher, and
Burnette, the Court does not have jurisdiction over Plaintiffs state law claims.
111. Plaintiff objects to the Magistrate Judges recommendation of dismissal
of Plaintiffs claim that Burnette spread rumor and innuendo about Plaintiff based
on lack of an allegation of constitutional violation.
In support of that objection, Plaintiff states that "a prison inmate has a
constitutional right to be protected from the [constant] threat of violence and from
physical assault [by other inmates]." (Doc. No. 35, p. 8) (quoting Zatier v. Wainwright,
802 F.2d 397, 400 (llth Cir. 1986) (emphasis supplied by Plaintiff) (alterations supplied
by the undersigned to properly conform the quote to the original). Plaintiff did not allege
that Burnette threatened violence against him; Plaintiff certainly did not allege that
Burnefte constantly threatened violence against him. Instead, Plaintiff alleged that
Burnette spread rumor and innuendo about him. As the Magistrate Judge noted,
"verbal abuse alone is insufficient to state a constitutional claim." Hernandez v. Fla.
De p 't of Corr., 281 F. App'x 862, 866 (11 th Cir. 2008) (citing Edwards v. Gilbert, 867
F.2d 1271, 1274 n.1 (llth Cir. 1989)). Plaintiff avers that "Burnette's verbal abuse was
but a component of the overall hostile environment that was created due to the acts and
omissions of the Defendants in this case." (Doc. No. 35, p. 7). Even accepting this

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allegation as true, Plaintiff still cannot state a separate claim for the alleged rumor and
innuendo spread by Burnette because such verbal abuse does not rise to the level of a
constitutional violation.
IV. Plaintiff objects to the standard used by the Magistrate Judge to
determine that his claims should be dismissed.
Plaintiff avers that the Magistrate Judge's Report "require[s] 'evidence' that could
only be obtained or confirmed through the discovery process in order to allow Plaintiff to
pursue his claims[.]" (Doc. No. 35, pp. 8-9). The Magistrate Judge clearly determined
that, with regard to the claims for which dismissal was recommended, Plaintiff failed to
set forth "a short and plain statement of the claim showing that [he] is entitled to relief."
FED. R. Civ. P. 8(a)(2). In some instances, Plaintiff did not allege facts sufficient to show
that he is entitled to relief; and, in another instance, the facts alleged resulted in harm
that did not rise to the level of a constitutional violation. The Magistrate Judge used the
appropriate standard.
V. Conclusion
Plaintiff's Objections to the Magistrate Judge's Report and Recommendation are
without merit and are overruled. The Report and Recommendation of the Magistrate
Judge is adopted as the Opinion of the Court. Plaintiffs claims against Dasher, Upton,
Burnette, and the Georgia Department Corrections are DISMISSED. ,
SO ORDERED, this

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day of

012.

B. AVANT EC NFZLD, JUDGE
'DISTRICT COURT
UNITED STA
SOUTHERN STR1CT OF GEORGIA

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