Green v. Hooks et al

Filing 78

ORDER granting in part and denying in part 66 Motion to Dismiss; granting in part and denying in part 70 Motion to Dismiss; granting in part and denying in part 76 Motion to Dismiss. Signed by Judge B. Avant Edenfield on 2/10/15. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
DARIUS ISHUN GREEN,
Plaintiff,
6:14-cv-46

V.

BRAD HOOKS,
JOHN BROWN,
TORIE GRUBBS,
CHARLES CALHOUN,
BRAD WESTBERRY,
JOHN JORDAN,
WAYNE COOKE,
CHRISTOPHER GAY,
MARK SMITH,
TERRY CALHOUN,
JERMAINE CALHOUN,
CYNTHIA CALHOUN,
JETTIE CALHOUN,
SHAWN CALHOUN,
BENJAMIN MOURAD,
BASAHAN MCINTOSH, and
JOHN DOE,
Defendants.
•) 1 I)
Before the Court are three Motions to
Dismiss: Mark Smith's Motion to Dismiss,
ECF No. 66, Terry Calhoun's and Jermaine
Calhoun's Motion to Dismiss, ECF No. 70,
and Wayne Cook's Partial Motion to
Dismiss, ECF no. 76. For the reasons set
forth below, the Court DENIES IN PART
and GRANTS IN PART the motions.

1.1

Darius Green filed this action against
various prison officials, arguing that they
"condoned" Darryl Ricard's sexual assault
of Green. Id. The complaint alleges several
counts against the defendants: first, that the
defendants violated Green's constitutional
rights under the Eighth and Fourteenth
Amendment (Count I); second, that those
defendants who were supervisors (including
Smith) are liable for condoning the assault
(Count II); third, that the defendants
conspired to harm Green (Count III); and,
fourth, that the defendants failed to
intervene to prevent the assault (Count IV).
See 6:14-cv-103-BAE-GRS, ECF No. 1 at
18-24.
II. SMITH'S MOTION TO DISMISS
A. Service of Process
Smith first argues that Green failed to
effect proper service of process upon him.
ECF No. 66-1 at 2. In support of this
argument, Smith submitted two identical
affidavits, one of which he signed, claiming
that he did not receive the summons itself.
See ECF Nos. 66-1, 69.
A defendant must be provided with a
summons and a copy of the complaint. See
Fed. R. Civ. P. 4(c)(1). "Except for service
by a United States marshal or deputy
marshal, proof must be by the server's
affidavit." Fed. R. Civ. P. 4(l)(1).
Here, Smith acknowledges that he
received the complaint. See ECF No. 66-1
at 3. His argument is that he received only

I. BACKGROUND
The facts here are the same as in the
Court's previous order. See ECF No. 68 at

This case represents the consolidation of two cases,
6:1 4-cv- 1 03-BAE-GRS and 6:1 4-cv-46-BAE-GRS.
Since the latter case survived the consolidation, all
citations are to the latter record unless otherwise
indicated.

the complaint and not the summons. But the
server's sworn testimony belies his claim.
After Smith was served, the server provided
the Court a "return of service" that includes
a sworn statement by the server that he
provided both the complaint and the
summons. ECF No. 60 at 1. The return also
displays Smith's signature, see id, though
its presence is not itself dispositive.
Although not entitled "affidavit," the Court
gives this return the same weight as if it had
been because it complies with the
requirements of 28 U.S.C. § 1746. See
Udoinyion v. The Guardian Sec., 440 F.
App'x 731, 735 (11th Cir. 2011) ("An
unsworn written declaration may be used as
evidence if the writer includes and signs a
statement such as, 'I declare under penalty
of perjury that the foregoing is true and
correct." (citing 28 U.S.C. § 1746)).

the pleadings and exhibits attached
thereto." GSW, Inc. v. Long Cnty., Ga., 999
F.2d 1508, 1510 (11th Cir. 1993). The
Court, however, is not limited to the four
corners of the pleadings; rather a proper
review of a motion to dismiss "requires the
reviewing court to draw on its judicial
experience and common sense."
See
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
A complaint will not be dismissed so
long as it contains factual allegations
sufficient "to raise a right to relief above the
speculative level." Twombly, 550 U.S. at
555; see Iqbal, 556 U.S. at 678 (claim must
have "facial plausibility"); Edwards v.
Prime, Inc., 602 F.3d 1276, 1291 (11th Cir.
2010). Yet, "a plaintiff's obligation to
provide 'grounds' of his 'entitle[ment] to
relief requires more than labels and
conclusions, and a formulaic recitation of
the elements of a cause of action will not
do." Twombly, 550 U.S. at 555 (alteration in
original).

Under Rule 4(1)(1), service may be
proved "by the server's affidavit." Fed. R.
Civ. P. 4(1)(1). The Court finds that the
server's sworn statements have sufficient
language to be considered an affidavit under
Rule 4(1)(1). Therefore, the Court finds that
Green properly served Smith.

In Iqbal, the Supreme Court further
explained the required level of specificity:
A claim has facial plausibility when the
plaintiff pleads factual content that
allows the court to draw the reasonable
inference that the defendant is liable for
the misconduct alleged. The plausibility
standard is not akin to a probability
requirement, but it asks for more than a
sheer possibility that a defendant has
acted unlawfully.

B. Rule 12(b)(6)
Smith also argues that Green has failed
to state a claim for relief. Under Rule
12(b)(6), a pleading that fails to state a claim
for relief must be dismissed. See Bell At!.
Corp. v. Twombly, 550 U.S. 544, 570
(2007).
1. Standard of Review

556 U.S. at 678 (internal citation and
quotation omitted).

In considering a Federal Rule of Civil
Procedure 12(b)(6) motion, all facts in the
plaintiffs complaint "are to be accepted as
true and the court limits its consideration to

In order to assess the plausibility of a
complaint, a court must be mindful of two
2

principles. "First, the tenet that a court must
accept as true all of the allegations contained
in a complaint is inapplicable to legal
conclusions."
Id
"Second, only a
complaint that states a plausible claim for
relief survives a motion to dismiss." Id at
679. Thus, Iqbal suggests a "two-pronged
approach" to assessing a defendant's Rule
12(b)(6) motion: "1) eliminate any
allegations in the complaint that are merely
legal conclusions; and 2) where there are
well-pleaded factual allegations, 'assume
their veracity and then determine whether
they plausibly give rise to an entitlement to
relief." Am. Dental Assn v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010)
(quoting Jqbal, 556 U.S. at 679)).
Importantly, however, the "plausibility
standard is not akin to a 'probability
requirement' at the pleading stage." Id at
1289 (quoting Iqbal, 556 U.S. at 678).
Instead, it '"simply calls for enough fact to
raise a reasonable expectation that discovery
will reveal evidence of the necessary
elements" of a plaintiffs claim for relief.
See McCray v. Potter, 263 F. App'x 771,
773 (11th Cir. 2008) (quoting Twombly, 550
U.S. at 556).

conditions," which led to the assault by
Darryl Ricard. 6:14-cv-103-BAE-GRS,
ECF No. 1 at 18-20.
"A
prison
official's
'deliberate
indifference' to a substantial risk of serious
harm to an inmate violates the Eighth
Amendment." Farmer v. Brennan, 511 U.S.
825, 828 (1994). To succeed on a claim of
failing to protect, a plaintiff "must plead
facts that establish '(1) a substantial risk of
serious harm; (2) the defendants' deliberate
indifference to that risk; and (3) causation."
Losey v. Warden, 521 F. App'x 717, 719
(11th Cir. 2013) (quoting Hale v. Tallapoosa
Cnty., 50 F.3d 1579, 1582(11th Cir. 1995));
see also Spires v. Paul, 581 F. App'x 786,
792 (11th Cir. 2014) ("To state an Eighth
Amendment claim under § 1983, a prisoner
must allege an extreme condition that poses
an unreasonable risk of serious damage to
the prisoner's future health or safety, and
that the defendants acted with deliberate
indifference to that risk."). A prison official
shows deliberate indifference 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
serious harm exists, and he must also draw
the inference." Farmer, 511 U.S. at 837.

"Judgment on the pleadings is
appropriate only when the plaintiff can
prove no set of facts in support of his claim
which would entitle him to relief." Horsley
v. Feldt, 304 F.3d 1125, 1131 (11th Cir.
2002) (quotation marks omitted).
I:
2. Count
Violations

Here, the Complaint alleges that Smith
placed Green in a position with a substantial
risk of serious harm. Complaint at 19. The
Complaint alleges that, by placing Ricard in
Green's cell, Smith acted with deliberate
indifference to this risk. Id. Finally, the
Complaint alleges causation—i.e., that
Smith's act of placing Ricard in the cell led
directly to Green's harm.
Id
The
Complaint alleges that Smith saw Ricard in

Constitutional

Green alleges that Smith violated the
Eighth and Fourteenth Amendments by
"condoning and promoting unsafe prison
3

Green's cell, that he knew Ricard was not
supposed to be there, and he "knew that
Ricard would sexually assault Green." See
6:14-cv-103-BAE-GRS, ECF No. 1 at 13.
The Court accepts, as it must, that these
factual allegations are true. See Stephens v.
Dep 't of Health & Human Servs., 901 F.2d
1571, 1573 (11th Cir. 1990) ("On a motion
to dismiss, the facts stated in appellant's
complaint and all reasonable inferences
therefrom are taken as true.").

1337 (11th Cir. 2002), the factual assertions
that Smith had subjective knowledge of the
risk that Ricard would sexually assault
Green are sufficient to support the allegation
that Smith violated Green's constitutional
rights.
Therefore, the Court denies Smith's
Motion to Dismiss as to Count I.
3. Count IV: Failure to Intervene
Green also alleges that Smith is liable
for failing to intervene to stop the assault.
6:14-cv-103-BAE-GRS, ECF No. 1 at 24.
Smith seeks the dismissal of this claim, ECF
No. 66-1 at 5.

Green's allegations are sufficient to
establish deliberate indifference by Smith.
If Smith knew that Ricard would sexually
assault Green and permitted him to remain
in Green's cell, he "disregard[ed] an
excessive risk to [Green's] health or safety."
See Farmer, 511 U.S. at 837. The
Complaint alleges that Ricard was a known
rapist and that each of the defendants knew
this. 6:14-cv-103-BAE-GRS, ECF No. 1 at
at 16. In short, it alleges that Smith was
aware of facts from which the inference of
risk could be drawn and that he drew the
inference. See id Whether Green can
support these allegations with evidence is
unknown; however, the Court finds that the
Complaint has set out sufficient facts to
survive Smith's motion to dismiss.

The complaint does not allege facts
sufficient for a failure-to-intervene claim.
"[I]t is clear that [i]f a police officer,
whether supervisory or not, fails or refuses
to intervene when a constitutional violation
such as an unprovoked beating takes place
in his presence, the officer is directly liable
under Section 1983." Ensley v. Soper, 142
F.3d 1402, 1407 (11th Cir. 1998) (second
alteration in original) (quotation marks
omitted). But Eleventh Circuit has declined
to expand this sort of claim: "While it is
well settled that Ensley applies to situations
where one officer observes a fellow officer
violating a constitutional right, typically by
using excessive force, we have not explicitly
adopted this holding in a situation involving
an officer observing a fight between
inmates." Johnson v. Boyd, 568 F. App'x
719, 722 n. 2 (11th Cir. 2014) (affirming the
district court's dismissal of a complaint for
"failure to intervene" in a prisoner fight).
Green's claim that Smith failed to intervene
is not supported by existing law, because a
failure to intervene claim does not apply to a

Smith argues that Green's allegations are
conclusory. ECF No. 66-1 at 4. They are
not. Green alleges that Smith acted with
deliberate indifference and then supports
that allegation with factual assertions of
Smith's knowledge. Because the "[C]ourt's
review on a motion to dismiss is 'limited to
the four corners of the complaint," see
Wilchombe v. TeeVee Toons, Inc., 555 F.3d
949, 959 (11th Cir. 2009) (quoting St.
George v. Pinellas Cnty., 285 F.3d 1334,
4

prison official's failure to intervene in an
altercation between prisoners. See id

Durre v. Dempsey, 869 F.2d 543, 545 (10th
Cir. 1989).

Therefore, because the Complaint does
not allege a cause of action recognized by
this Circuit, the Court dismisses Count IV as
to Smith.

Although Green has provided minimal
allegations of a conspiracy, they are
sufficient to survive a motion to dismiss.
Green alleges that Smith "agreed" with other
defendants to place Ricard in Green's cell.
6:14-cv-103-BAE-GRS, ECF No. 1 at 14,
17. This agreement was made "with all
other Defendants." Id. at 17. Green also
provides circumstantial allegations, arguing
that "there is no way" that the assault could
have occurred absent a conspiracy. Id at
22. Therefore, Green has sufficiently
alleged the existence of a conspiracy.

4. Count III: Conspiracy
The complaint also lists a claim for
"civil conspiracy," alleging that Smith
conspired to violate Green's constitutional
rights. 6:14-cv-103-BAE-GRS, ECF No. 1
at 22-23.
"A plaintiff may state a § 1983 claim for
conspiracy to violate constitutional rights by
showing a conspiracy existed that resulted in
the actual denial of some underlying
constitutional right." Grider v. City of
Auburn, Ala., 618 F.3d 1240, 1260 (11th
Cir. 2010). A conspiracy "requires the
combination of two or more persons acting
in concert," and "[a] plaintiff must allege,
either by direct or circumstantial evidence, a
meeting of the minds or agreement among
the defendants." See Brever v. Rockwell
Int'l Corp., 40 F.3d 1119, 1126 (10th Cir.
1994) (quotations omitted). In alleging
conspiracy, "the linchpin. . . is agreement."
Bailey v. Bd. of Cnty. Comm 'rs of Alachua
Cnty. Fla., 956 F.2d 1112, 1122 (11th Cir.
1992). "It is not enough to simply aver that
a conspiracy existed. A plaintiff must
instead show that the parties reached an
understanding to deny the plaintiff his
rights." Fuiwood v. Fed Bureau of Prisons,
568 F. App'x 753, 756 (11th Cir. 2014)
(citation omitted). When a "plaintiff fail[s]
to allege specific facts showing agreement
and concerted action among defendants,"
courts properly dismiss conspiracy claims.

Smith argues that the intracorporate
conspiracy doctrine bars Green's claim for
conspiracy. ECF No. 52 at 13-14. "[U]nder
the doctrine, a corporation cannot conspire
with its employees, and its employees, when
acting in the scope of their employment,
cannot conspire among themselves."
McAndrew v. Lockheed Martin Corp., 206
F.3d 1031, 1036 (11th Cir. 2000). This is
because, "under basic agency principles, the
acts of a corporation's agents are considered
to be those of a single legal actor." Id. The
doctrine also applies to public entities.
Denney v. City of Albany, 247 F.3d 1172,
1190 (11th Cir. 2001). Naturally, since the
doctrine necessarily involves only
conspirators within one organization, the
presence of outside parties prevents its
application. Cf id at 1191 (affirming the
application of the intracorporate conspiracy
doctrine when "no outsiders are alleged to
be involved").
Smith—like the other defendants—is an
employee of the Rogers State Prison. 6:145

cv-103-BAE-GRS, ECF No. 1 at 13. But
the complaint does not limit its allegation of
conspiracy to the defendants: Ricard is also
alleged to have been a fellow conspirator.
See id at 23. According to the Complaint,
Tone Grubbs "conspired with Green's
sexual assailant and Hon Doe [sic] to have
Green placed in a cell with the person
[they] knew would sexually assault Green
again." Id. Including a non-official in a §
1983 action is permissible, Motes v. Myers,
810 F.2d 1055, 1058 (11th Cir. 1987) ("[A]
private party's joint participation with state
officials in the seizure of disputed property
is sufficient to characterize that party as a
'state actor' for purposes of the Fourteenth
Amendment."), but this inclusion means that
the intracorporate conspiracy doctrine does
not apply. Since Ricard is alleged to have
been a member of the conspiracy, dismissal
under the intracorporate conspiracy doctrine
would be inappropriate at this stage.
Therefore, the Court denies Smith's
motion to dismiss Count III.
C. Qualified Immunity
In addition to opposing the complaint on
its face, Smith has raised the affirmative
defense of qualified immunity to Green's
claims. ECF No. 66-1 at 7. Qualified
immunity protects "all but the plainly
incompetent or those who knowingly violate
the law." Malley v. Briggs, 475 U.S. 335,
341 (1986).
"The defense of qualified immunity may
be raised and addressed on a motion to
dismiss and will be granted if the 'complaint
fails to allege the violation of a clearly
established constitutional right." Snider v.
Jefferson State CmIy. Coil., 344 F.3d 1325,

1327 (11th Cir. 2003) (quoting Chesser v.
Sparks, 248 F.3d 1117, 1121 (11th Cir.
2001) (quotation omitted)).
Once the affirmative defense of qualified
immunity is advanced . . . [u]nless the
plaintiff's allegations state a claim of
violation of clearly established law, a
defendant pleading qualified immunity is
entitled to dismissal before the
commencement of discovery.' Absent
such allegations, '[i]t is . . . appropriate
for a district court to grant the defense of
qualified immunity at the motion to
dismiss stage.' Thus, if the defendants in
this case are entitled to qualified
immunity, then their Rule 12(b)(6)
motion to dismiss must be granted and
the plaintiffs' suit must be dismissed.

Cottone v. Jenne, 326 F.3d 1352, 1357 (11th
Cir. 2003) (alterations in original) (citations
omitted). "To receive qualified immunity, a
government official first must prove that he
was acting within his discretionary
authority." Id If this is established, the
burden next "shifts to the plaintiff to show
that the defendant is not entitled to qualified
immunity." Id. at 1358.
Determining whether a defendant is
entitled to qualified immunity requires a
two-step process. First, the court must
determine whether the complaint "make[s]
out a violation of a constitutional right."
Pearson v. Callahan, 555 U.S. 223, 232
(2009). Second, "the court must decide
whether the right at issue was 'clearly
established' at the time of defendant's
alleged misconduct." Id. "Defendants are
entitled to qualified immunity in a Rule
12(b)(6) motion to dismiss only if the
complaint fails to allege facts that would
show a violation of a clearly established

constitutional right." Kyle K v. Chapman,
208 F.3d 940, 942 (11th Cir. 2000).

have a duty . . . to protect prisoners from
violence at the hands of other prisoners."
Farmer, 511 U.S. at 833 (alteration in
original) (quotation omitted). It is clearly
established that "[h]eing violently assaulted
in prison" is not a legitimate part of a
prisoner's punishment.
See id. at 834.
Thus, when prison officials are deliberately
indifferent to violent assaults, they violate a
clearly established right.

Smith asserts that he was acting within
his discretionary authority at the time of the
assault. ECF No. 66-1 at 7. The Court
agrees, since by placing prisoners in cells
the defendants were "performing a
legitimate job-related function . . . through
means that were within [their] power to
utilize." See Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir.
2004). Thus, the burden shifts onto Green
to, first, make out a violation of a
constitutional right and, second, demonstrate
that the right was clearly established at the
time of the alleged violation. See Pearson,
555 U.S. at 232.

Green alleges that Smith, while acting
within his discretionary authority, violated a
clearly established constitutional right.
Therefore, given that the Court must take the
facts in the complaint as true, Smith is not
entitled to qualified immunity at this stage.
1. Count II: Supervisory Liability
Green also lists a claim for supervisory
liability against Smith. 6:14-cv-103-BAEGRS, ECF No. 1 at 20. Smith does not seek
to dismiss this claim. See ECF No. 66-1.
Thus, the Court will not address Count II.

Green alleges that Smith violated the
Eighth and Fourteenth Amendments to the
United States Constitution when he
permitted Ricard to be in the cell, even
though he knew that Ricard would assault
Green. 6:14-cv-103-BAE-GRS, ECF No. 1
at 19. The complaint's allegations therefore
satisfy the first step in denying Smith
qualified immunity. See Cotton, 326 at
1357.

III. TERRY CALHOUN'S AND JERMAINE CALHOUN'S MOTION
TO DISMISS
Terry Calhoun and Jermaine Calhoun
seek the dismissal only of Count N, and
only on the basis that the complaint fails to
state a claim for failure to intervene. ECF
No. 70-1 at 2-4.

Second, Green has demonstrated that the
right of a prisoner to be protected by prison
officials from sexual assault by other
prisoners is clearly established. To
determine whether a right was clearly
established, the Court looks to the decisions
of the Supreme Court, the Eleventh Circuit,
and the Supreme Court of Georgia. See
Saunders v, Duke, 766 F.3d 1262, 1266
(11th Cir. 2014). The Supreme Court has
made clear, in a case involving the sexual
assault of a prisoner, that "prison officials

In Count IV, Green alleges that Terry
Calhoun and Jermaine Calhoun are both
liable for failing to intervene to stop the
assault. 6:14-cv-103-BAE-GRS, ECF No. 1
at 24. Terry Calhoun and Jermaine Calhoun
seek the dismissal of Count IV. ECF No.
66-1 at 5. As discussed above, the Eleventh
Circuit has not recognized a cause of action
7

based upon a failure to intervene in these
circumstances. Therefore, the Court grants
Terry Calhoun's and Jermaine Calhoun's
motion to dismiss Count IV.

66.
The Court dismissed Count IV.
However, the Court also DENIED IN
PART Smith's Motion to Dismiss, ECF No.
66, with regard to Counts I and III. In
addition, Smith did not seek the dismissal of
Count II. Therefore, Counts I, II, and III
remain.

Terry and Jermaine Calhoun also argue
that service was not properly effected upon
them, seeking to preserve this issue upon
appeal. ECF No. 70-1 at 4. They argue that
they did not receive a copy of the summons.
However, all the evidence before the Court
indicates that they did receive the
summons.2 Both summonses were returned
executed and signed by the server. ECF
Nos. 64, 65. As discussed above, the Court
finds the server's sworn statements
sufficient to establish that a summons was
executed upon both defendants.

The Court GRANTED IN PART and
DENIED IN PART Terry Calhoun's and
Jermaine Calhoun's Motion to Dismiss, ECF
No. 70. The Court also GRANTED Cook's
Partial Motion to Dismiss, ECF No. 76.
Due to the overlap of motions to dismiss,
a short summary is in order.
• Counts I, II, and III remain against all
defendants.
• Count IV is dismissed against some
defendants. The Court previously
dismissed Count IV with regard to
Cynthia Calhoun, Jettie Calhoun, Shawn
Calhoun, Christopher Gay, Basahan
McIntosh, Brad Westberry, John Jordan,
Charles Calhoun, and Benjamin Mourad.
ECF No. 68 at 9. Here, the Court
dismissed Count IV with regard to Mark
Smith, Wayne Cook, Terry Calhoun, and
Jermaine Calhoun.
• Count IV remains as to defendants Brad
Hooks, John Brown, and Tone Grubbs.

IV. COOK'S MOTION TO DISMISS
Wayne Cook seeks only the dismissal of
Count IV, arguing that the Eleventh Circuit
does not recognize a failure to intervene
claim under these circumstances. ECF No.
76-I at 2-3. As set forth in more detail
above, the Court agrees. Therefore, the
Court grants Cook's motion to dismiss
Count IV.
V. CONCLUSION
In this order, the Court GRANTED IN
PART Smith's Motion to Dismiss. ECF No.
2

Terry Calhoun and Jermaine Calhoun did eventually
provide signed copies of these affidavits, attached to
a reply brief. However, the Court will not consider
these affidavits, in part because they are untimely,
see LR 7.6, SDGa ("A party intending to file a reply
brief shall immediately so notify the Clerk and shall
serve and file the reply within fourteen (14) calendar
days of service of the opposing party's last brief."
(emphasis added)), and in part because submission of
completely new evidence in reply briefs generally is

This

of February 2015.

W AVANT EDENFIELD, JUDGE /
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OfF GEORGIA

improper, see Royal v. New York Life Ins. Co., 2015
WL 339781, at *5 (S.D. Ga. Jan. 26, 2015).

8