Maher v. Johnson et al

Filing 54

ORDER vacating the 52 Order Adopting Report and Recommendations. Maher's 1 Complaint filed by Thomas Trouble Maher is dismissed without prejudice. The Clerk is directed to substitute a judgment of dismissal without prejudice. Signed by Judge B. Avant Edenfield on 10/22/13. (wwp)

I.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
TERRENCE BIGGERS,
Plaintiff,
6:12-cv-115

V.

EARL TOPPINGS; and RICHARD
BUNCH,
Defendants.

I.

INTRODUCTION

Before the Court is the Magistrate
Judge's Report and Recommendation
("R&R"), ECF No. 27, recommending
denial of Defendants' Motion to Dismiss.
ECF No. 20. The Court concurs with the
Magistrate Judge and so ADOPTS his
opinion as the Court's. That said, the
adoption of the R&R in this case raises
troubling questions about the same
Magistrate Judge's R&R in the case of
Maher v. Davis, No. 6:12-cv-97, ECF No.
49 (S.D. Ga. Aug 29, 2013). Although the
Court correctly dismissed Maher, it did so
for reasons belied by this opinion. So, the
Court VACATES its adoption order and
judgment in Maher so it can substitute a
judgment of dismissal in that case for the
reasons in this opinion.

H. BACKGROUND
Terrence Biggers and Thomas Maher
were cell mates at Smith State Prison in

July, 2012. See Biggers, ECF No. 1 at 5.'
At that time, the prison was "in the midst of
several different gang conflicts," Maher,
ECF No. 1 at 6, which all correctional
officers had been briefed on.' Biggers, ECF
No. 24 at 1. On the night of July 10, around
1:45 a.m., correctional officers Earl
Toppings and Richard Bunch came to
Biggers' and Maher's cell in the
administrative segregation unit of the prison.
Maher, ECF No. 1 at 6; Biggers, ECF Nos.
1 at 5; 24 at 1. Toppings and Bunch opened
the cell door manually, Biggers, ECF No. 1
at 5, in order to escort Maher "for an outside
medical appointment at Georgia State
Prison." Maher, ECF No. 1 at 6.
Toppings and Bunch did not at any point
handcuff either Maher or Biggers. Biggers,
ECF No. 1 at 5. Nor did they handcuff two
other inmates already out of their cells when
Maher's escort began. Id.; Maher, ECF No.
1 at 6. To top it all off, Toppings also failed
to shut the tray flaps of several other cells in
the same unit. Biggers, ECF No. 24 at 1.
Both Maher and Biggers suffered
assaults from the two inmates out of their
cells (both gang members), as well as from
Citations to this case will be in the format "Biggers,
ECF No. ," while citations to Maher v. Davis will
appear as "Maher, ECF No.
2
Maher makes a similar, but not identical, allegation.
He states that the gang conflicts "caused all of Smith
State Prison to be locked down at one point because
of the death of a CRIP inmate." Maher, ECF No. 1 at
6. Although Maher does not say that all correctional
officers had been briefed on the gang conflict as does
Biggers, in light of the fact that officers almost
certainly had to know about a prison-wide lockdown
due to a death, the Court liberally construes Maher's
allegations to insinuate the same as Biggers'. See
Stewart v. United States, 646 F.3d 856, 857 n.l (11th
Cir. 2011) (noting that standards for the sufficiency
of pro se pleadings are less stringent when the
plaintiff is pro se).
."

12

Courts must "take all of the factual
allegations in [a] complaint as true," 3 but
those allegations must raise "more than a
sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (emphasis added). Indeed,
"[w]here a complaint pleads facts that are
'merely consistent with' a defendant's
liability," it falls short of stating a claim for
relief. Id. (quoting Twombly, 550 U.S. at
557).

the inmates in their cells (members of the
same gang) through the flaps Toppings left
open. Biggers, ECF No. 1 at 5; Maher, ECF
No. 1 at 6.
Maher filed suit first, alleging Eighth
Amendment failure to protect claims under
42 U.S.C. § 1983, along with claims related
to allegedly inadequate medical care.
Maher, ECF No. 1. Biggers followed suit
shortly thereafter asserting similar claims.
Biggers, ECF No. 1. Toppings and Bunch
filed motions to dismiss in both cases.
Biggers, ECF No. 20; Maher, ECF No. 40.

IV.

DISCUSSION

Defendants in this case argue that
Biggers "fails to state a plausible claim for a
violation of his Eighth Amendment rights"
because his complaint lacks "allegations that
plausibly implicate that either Defendant
knew that the unnamed inmate attacker
posed a substantial risk of serious harm to
[Biggers], or that either Defendant was
deliberately indifferent to that risk."
Biggers, ECF No. 20-1 at 2. Alternatively,
Defendants argue they are entitled to
qualified immunity. Id. In considering
those arguments, the Magistrate Judge
recommended denying Defendants' motion
to dismiss. Yet in Maher, faced with a
nearly identical set of arguments 4 on
indistinguishable claims against Toppings

The Magistrate Judge in Maher
recommended granting Defendants' motion
to dismiss and this Court, after a de novo
review of the record, concurred. Maher,
ECF Nos. 49; 52. The same Magistrate
Judge, however, earlier recommended
denying Defendants' motion to dismiss in
Biggers. Biggers, ECF No. 27. The
discrepancy in recommendations, in two
cases with virtually identical facts, claims,
and motions to dismiss, cries out for, and
now receives, renewed attention from the
Court.

III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2)
requires complaints to contain "a short and
plain statement of the claim showing that the
pleader is entitled to relief." "While a
complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed
factual allegations," it must contain "more
than labels and conclusions, and a formulaic
recitation of the elements of a cause of
action will not do." Bell At!. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).

Pro se prisoner complaints are entitled to a liberal
construction in addition to the presumption of truth
given plausible factual allegations. See Bryant v.
Ruvin, 477 F. App'x 605, 607 (11th Cir. 2012)
(quoting Hughes v. Loll, 350 F.3d 1157, 1160 (11th
Cir. 2003)) (holding that "[p]ro se pleadings are held
to a less stringent standard. . . and will, therefore, be
liberally construed" (alteration in original)).
Defendants also argued for dismissal in Maher for
abuse of process. See Maher, ECF No. 40 at 6-7.
The Magistrate Judge's R&R did not address this
argument because it found Maher's complaint failed
to state a claim.

2

cannot under our cases be condemned as theinfliction of punishment").

and Bunch, the Magistrate Judge
recommended granting Defendants' motion
to dismiss. That discrepancy, in addition to
raising eyebrows, is legally inappropriate.

Biggers and Maher—given liberal
construction of their complaints—both
allege that at approximately 1:45 a.m., in the
midst of a gang war known to all
correctional officers, Defendants removed
Maher from the cell he shared with Biggers
without handcuffing either man. Biggers,
ECF No. 1 at 5; Maher ECF No. 1 at 6. At
the same time—again, 1:45 a.m., when
prisoners almost certainly cannot be outside
their cells—two gang members roamed the
cell block, also without handcuffs on.
Biggers, ECF No. 1 at 5; Maher ECF No. 1
at 6. Tray flaps on cells of other gang
members remained open after Toppings
passed out ice before coming to Biggers and
Maher's cell. Biggers, ECF No. 24 at 1;
Maher, ECF No. 1 at 6.

The Court's discussion proceeds in two
parts. First, the Court outlines the law
relevant to Biggers' and Maher's Eighth
Amendment claims and explains why it
shows their complaints state claims.
Second, the Court addresses why Maher's
complaint nevertheless must suffer
dismissal.
A. Eighth Amendment Failure to
Protect Claims
"[P]rison officials have a duty . . . to
protect prisoners from violence at the hands
of other prisoners." Purcell ex rel. Estate of
Morgan v. Toombs Cnly., Ga., 400 F.3d
1313, 1319 (11th Cir. 2005) (quoting
Farmer v. Brennan, 511 U.S. 825, 833
(1994)). To demonstrate a violation of that
duty, a prisoner must "produce sufficient
evidence of (1) a substantial risk of serious
harm; (2) the defendants' deliberate
indifference to that risk; and (3) causation."
Id

When Toppings and Bunch attempted to
escort Maher out of his cell, the two
unconfined gang members and those in cells
with open tray flaps began to assault both
Biggers and Maher with homemade
weapons. Biggers, ECF No. 1 at 5; Maher
ECF No. 1 at 6. Both men suffered stab
wounds and other injuries as a result.

A prison official is deliberately
indifferent if he knows of and disregards "an
excessive risk to inmate health or safety; the
official must both be aware of facts from
which the inference could be drawn that a
substantial risk of harm exists, and he must
also draw the inference." Id. at 1320.
Simple negligence then is not actionable.
See Farmer, 511 U.S. at 838 (noting that "an
official's failure to alleviate a significant
risk that he should have perceived but did
not, while no cause for commendation,

It is beyond peradventure that
unrestrained gang members allowed to roam
cell blocks freely at 1:45 a.m. during an
ongoing gang war pose a substantial risk of
serious harm, both to other inmates and to
correctional officers. See Staley v. Owens,
367 F. App'x 102, 107 (11th Cir. 2010)
(citing Farmer, 511 U.S. at 842-43) (holding
that "[a] substantial risk to a prisoner's
safety may arise.. . out of an environment
of longstanding and pervasive attacks to
3

risk of harm to Biggers and Maher. The
Court therefore CONCURS with the
Magistrate Judge's R&R. 5 Defendants'
motion to dismiss, Biggers, ECF No. 20, is
DENIED. Biggers' Eighth Amendment
claims against Bunch and Toppings, and
only those claims, may proceed.

which all prisoners in his situation are
exposed"). The weightier question is
whether Defendants were deliberately
indifferent to that risk.
Liberally construing Biggers' and
Maher's complaints, the Court finds their
allegations sufficient to show that
Defendants objectively knew of the risk that
the unrestrained gang members would
assault Biggers and Maher. Defendants, like
all other correctional officers at Smith State
Prison, knew of the ongoing gang war.
Biggers, ECF No. 24 at 1. Assuming
Defendants were not blind, they also knew
that some inmates were not in their cells at
the time Toppings opened Biggers and
Maher's cell. And Toppings had to have
known—he's the one who opened them and
then did not close them—that tray flaps on
some cells remained open.

For the same reasons, the Court must
VACATE its adoption order granting
Defendants' motion to dismiss in Maher.
Maher, ECF No. 52.6 Maher's complaint
nevertheless remains dismissed because of
his abuse of process.
B. Maher's Complaint
In his R&R in Maher, the Magistrate
Judge explicitly declined to address
Defendants' arguments for dismissal other
than their assertion that Maher failed to state
a claim. See Maher, ECF No. 49 at 8. But
because the R&R incorrectly found no
deliberate indifference, the Court
reexamines Defendants' other arguments.

Although a closer call, the Court also
finds that Biggers and Maher sufficiently
allege that Defendants disregarded the
substantial risk of assault. As noted, pro se
pleadings are entitled to a liberal
construction. See Hughes, 350 F.3d at 1160.
Applying that standard, the Court reads
Biggers and Maher's allegations to include
subjective knowledge by Defendants that the
gang member inmates out of their cells in
the middle of the night, in the middle of an
ongoing gang war, posed a serious threat to
other prisoners.

One in particular stands out as
meritorious. Defendants assert that Maher
lied in his complaint when he answered no
when asked whether he had filed any
lawsuits in federal court other than those
involved in this case. Maher, ECF No. 40 at
6. The resultant abuse of process,
Defendants argue, warrants dismissal of
Maher's complaint. Id. The Court agrees.
To be clear, the Court also concurs with the R&R's
recommendation that qualified immunity be denied
based on the facts as pled.
6
Like facts should produce like results. That's the
beauty of legal rules consistently applied. But that
unfortunately did not happen in the R&Rs from
Maher and Biggers.
Maher used a standard form in the Southern District
of Georgia for prisoners wishing to bring § 1983
claims in federal court. See Maher, ECF No. 1.

Despite their knowledge, Defendants did
nothing to prevent the assaults on Maher and
Biggers. They did not handcuff or place in
their cells the gang member inmates
roaming free. In other words, Defendants
were deliberately indifferent to a substantial
4

The Magistrate Judge's R&R in Biggers
recommending denial of Defendants' motion
to dismiss, Biggers, ECF No. 27, is
ADOPTED as the opinion of the Court
because it correctly concludes that Biggers
sufficiently alleges deliberate indifference
by Defendants to a substantial risk of harm.
Biggers' Eighth Amendment claims, and
only those claims, may proceed.

28 U.S.C. § 1915(e)(2)(B)(i) requires
dismissal of cases, like Maher's, filed in
forma pauperis where the court determines
"the action . . - is frivolous or malicious."
Actions are malicious when, among other
things, an indigent plaintiff commits an
abuse of process by lying about having filed
other lawsuits. See Rivera v. Aiim, 144 F.3d
719, 731 (11th Cir. 1998) (approving district
court dismissal of Suit on abuse of process
grounds because plaintiff "lied under
penalty of perjury about the existence of a
prior lawsuit"), abrogated on other grounds
by Jones i'. Bock, 549 U.S. 199 (2007).

For that same reason, the Magistrate
Judge's R&R recommending granting
Defendants' motion to dismiss in Maher,
Maher, ECF No. 49, should not be the
opinion of the Court. The Court therefore
VA CA TES its adoption order in that case,
Maher, ECF No. 52. Maher's complaint,
however, is DISMISSED WITHOUT
PREJUDICE because he lied in it about
having filed other lawsuits.

Maher committed that precise abuse of
process when he filed his complaint. See
Maher, ECF No. 1 at 2. When asked
whether he had brought any lawsuits in
federal court dealing with facts other than
those in this case, Maher swore, under
penalty of perjury, that he had not. Id. But
Maher has filed at least three other lawsuits
unrelated to the facts here—Maher v. Hall,
No. 6:01-cv-68 (S.D. Ga.); 8 Maher v. Smith,
No. 6:04-cv-93 (S.D. Ga.); and Purser v.
Smith, No. 6:03-cv-157 (S.D. Ga.).

So, the Clerk is ORDERED to (1)
terminate Defendants' motion to dismiss in
this case, Biggers, ECF No. 27; and (2)
vacate the judgment of dismissal in Maher,
Maher, ECF No. 53, and substitute a
judgment of dismissal without prejudice.

The Court will not tolerate perjury by
any party, pro se or not. To ensure that
Maher, and all other parties with matters
before the court, understand that complete
candor is the bedrock of our judicial process,
the Court must dismiss Maher's complaint
without prejudice.

Thiday of October 2013

B. AVAN1YEDENFIELD, JDGE(
UNITED STATES DISTfCT COURT
SOUTHERN DISTRICT OF GEORGIA

V. CONCLUSION

Maher disclosed this case in another answer to the
1983 questionnaire. See ECF No. 1 at 1.

5