Stewart v. Chapman et al

Filing 11

ORDER denying 5 Motion to Obtain Tangible Evidence. Signed by Magistrate Judge James E. Graham on 5/20/2013. (csr)

U. S. '
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GE9q 1
STATESBORO DIVISION
C LE C

JOHN CLIFFORD STEWART,

FILED
UT COURT
LIV

2jp:

SO. O1. OF

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Plaintiff,
CIVIL ACTION NO.: CV613-027

V.

BRUCE CHAPMAN; JOHN PAUL;
and LARRY BREWTON,
Defendants.

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ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff, who is currently housed at Georgia State Prison in Reidsville, Georgia,
filed an action pursuant to 42 U.S.C. § 1983. A prisoner proceeding against officers or
employees of government entities must comply with the mandates of the Prison
Litigation Reform Act, 28 U.S.C. §§ 1915 & 1915A. In determining compliance, the
court shall be guided by the longstanding principle that pro se pleadings are entitled to
liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972); Walker v. Duqcier, 860
F.2d 1010, 1011 (11th Cir. 1988).
28 U.S.0 § 1915A requires a district court to screen the complaint for cognizable
claims before or as soon as possible after docketing. The court must dismiss the
complaint or any portion thereof that is frivolous, malicious, fails to state a claim upon

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which relief may be granted, or seeks monetary damages from a defendant who is
immune to such relief. 28 U.S.C. § 1915A (b)(1) and (2).
In Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997), the Eleventh Circuit
interpreted the language contained in 28 U.S.C. § 1915(e)(2)(B)(ii), which is nearly
identical to that contained in the screening provisions at § 1915A(b). As the language of
§ 1915(e)(2)(B)(ii) closely tracks the language of Federal Rule of Civil Procedure
12(b)(6), the court held that the same standards for determining whether to dismiss for
failure to state a claim under Rule 12(b)(6) should be applied to prisoner complaints
filed pursuant to § 1915(e)(2)(B)(ii). Mitchell, 112 F.3d at 1490. While the court in
Mitchell interpreted § 1915(e), its interpretation guides this Court in applying the
identical language of § 1915A.
Plaintiff asserts that "officers" in his dormitory have not "adhered to the delivery of
prescribed dietary menu[s.]" (Doc. No. 1, p. 5). Plaintiff states that he verbally notified
Defendant Larry Brewton, the unit manager; Defendant John Paul, the deputy warden;
and Defendant Bruce Chapman, the warden, that he was not receiving his dietary
menu. Plaintiff presumably asserts that Defendants did nothing to correct the perceived
problem after he notified them.
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 Cnty, 50 F.3d 1579, 1582 (11th Cir. 1995). A plaintiff must also allege that
the act or omission was committed by "a person acting under color of state law." Id. In
section 1983 actions, liability must be based on something more than a theory of
respondeat superior. Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir. 2009); Braddy v.

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Fla. Dep't of Labor & Employment 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 plaintiffs 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).
Plaintiff fails to set forth facts which indicate that he suffered a violation of a
constitutional right or that the named Defendants are responsible for any alleged
violation of a constitutional right. Plaintiff wishes to hold the named Defendants liable
based on their supervisory positions, and he cannot sustain a § 1983 cause of action
against the named Defendants on that basis. The declarations Plaintiff makes in his
"Sworn Affidavit" reveal that Plaintiff's factual allegations are against "officers" in his
housing unit, not the named Defendants. (Doc. No. 1, pp. 8-9).
Plaintiffs Motion to Obtain Tangible Evidence (Doc. No. 5) is DENIED.

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CONCLUSION
Based on the foregoing, it is my RECOMMENDATION that Plaintiffs Complaint
be DISMISSED based on his failure to state a claim upon which relief may be granted.

SO ORDERED and REPORTED and RECOMMENDED, this

2

day of May,

2013.

JAM'S E. GRAHAM
/UNrVED STATES MAGISTRATE JUDGE

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