Hampton v. Peeples et al

Filing 46

ORDER directing Plaintiff to provide this Court with a proper address for Defendant Peeples so that he can be served with a copy of Plaintiff's complaint within fourteen days of the date of this Order. The Court overrules Plaintiff's object ions and adopts the 19 Report and Recommendation. The Court grants 27 Motion for copies; denies 28 Motion for injunctive relief; dismisses 40 Motion for out of time appeal; dismisses as moot 43 Motion for Status; dismisses as moot [44 ] Motion for Status. The Court dismisses Plaintiffs conspiracy, retaliation, and supervisory liability claims. Also, the Court dismisses April Hodges, Brad Hooks, Stanley Williams, Eyvette Cook, Carl Foust, Debra McCloud, and Nancy Garrett as named Defendants. The Clerk of Court is directed to provide Plaintiff with copies of his requested documents at a cost of $0.50 per page, to be charged to Plaintiff's inmate account. Signed by Judge J. Randal Hall on 01/12/2016. (thb)

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

NORMAN HAMPTON, III,
Plaintiff,

CIVIL ACTION NO.: 6:14-cv-104

v.

MATT PEEPLES; APRIL HODGES; BRAD
HOOKS; STANLEY WILLIAMS; EYVETTE
COOK; CARL FOUST; DEBRA MCCLOUD;
and NANCY GARRETT,
Defendants.

ORDER

Presently before the Court are Plaintiffs Objections to the Magistrate Judge's Report and
Recommendation dated June 8, 2015. (Doc. 19.) After an independent and de novo review of
the entire record, the Court OVERRULES Plaintiffs Objections and CONCURS with and
ADOPTS the Magistrate Judge's Report and Recommendation, as supplemented herein.
Accordingly,
DISMISSED.

Plaintiffs

conspiracy,

retaliation,

and

supervisory

liability

claims

are

In addition, the Court DISMISSES April Hodges, Brad Hooks, Stanley

Williams, Eyvette Cook, Carl Foust, Debra McCloud, and Nancy Garrett as named Defendants.

By this Order, the Court also issues, as set forth below, rulings on matters Plaintiff filed after the
Magistrate Judge issued his Report.
I.

Background

In his Complaint, as amended, Plaintiff alleged Defendant Peeples, who was formerly a

counselor at Rogers State Prison, assaulted him and used a racial epithet against him. Plaintiff
asserted Defendant Peeples' assault caused injuries to his neck and shoulder. Plaintiff alleged

Defendant Hodges knowingly entered fraudulent data into the computer system concerning his
history of violence, including information about the incident with Defendant Peeples, in violation

of Georgia Department of Corrections' policy. According to Plaintiff, it is "very clear"
Defendant Hodges "orchestrated [a] conspiracy" against him. (Doc. 1, p. 8.) Plaintiff alleged
that Defendants Hooks and Williams, the Wardens at Rogers and Smith State Prisons,

respectively, arranged to have Plaintiff transferred to Smith State Prison based on the fraudulent
information Defendant Hodges entered into the computer system, even though these two (2)

Defendants knew the information Defendant Hodges placed in the system about him was false.
According to Plaintiff, Defendant Hooks conspired with Defendant Hodges regarding the

fraudulent information she entered about Plaintiff. (Doc. 15, p. 4.) Plaintiff also alleged that this

transfer was a retaliatory transfer and was done against policy. Plaintiff asserted that Defendants
Cook, Foust, McCloud, and McGarrett, all of whom are counselors at Smith State Prison, have

failed to change the erroneous information in his file, in violation of the criminal laws for the

State of Georgia. Plaintiff contended that he has been in lockdown status for over a year based
on retaliatory motives of the Defendants, which has caused him psychological torture. (Id at
p. 6.)

The Magistrate Judge conducted the requisite frivolity review of Plaintiff s Complaint, as

amended. The Magistrate Judge determined Plaintiff failed to set forth sufficient facts indicating

Defendants conspired together to violate his constitutional rights. (Doc. 19, pp. 4-5.) The
Magistrate Judge also determined Plaintiff failed to set forth any facts indicating he exercised his
First Amendment rights or that, as a result, Defendants retaliated against him. (Id at pp. 5-6.)

Finally, the Magistrate Judge determined Plaintiff could not hold Brad Hooks, the Warden at

Rogers State Prison, liable for any constitutional violations of Hooks' subordinate based on his

supervisory position. (Id at pp. 6-7.) However, the Magistrate Judge found Plaintiff set forth a
viable Eighth Amendment claim against Defendant Peeples based on the assertion Defendant
Peeples assaulted him and called him a racial epithet, and the Magistrate Judge ordered service

of Plaintiff s Complaint on Defendant Peeples. (Id at p. 7.) Plaintiff objected to the Magistrate
Judge's recommended dismissals, as well as the Magistrate Judge's service of his Complaint on

Defendant Peeples. (Doc. 23.) The Court now addresses Plaintiffs Objections.
II.

Plaintiffs Objections

A.

Conspiracy

Plaintiff contends he "detailed conclusive facts" "to arouse a conscience of conspiracy

between the [Defendants against the Plaintiff[.]" (Doc. 23, p. 2.) Plaintiff asserts the Magistrate

Judge neglected to address his contentions that two counselors witnessed Defendant Peeples'
assault, and these two counselors have proof that his records were falsified.

According to

Plaintiff, his witnesses can provide testimony that "this whole ordeal as being a deliberate and

planned concert act of conspiracy and willful and wonton[sic] misconduct against" him by
Defendants. (Id at p. 3.)

As the Magistrate Judge concluded, Plaintiff fails to set forth sufficient facts which make

it plausible the named Defendants reached an agreement to violate Plaintiffs constitutional

rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007) ("a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face"). Instead, Plaintiff
does nothing more than "string together" his various conclusory allegations in an effort to state a

viable conspiracy claim against Defendants. Harvey v. Harvey, 949 F.2d 1127, 1133 (11th

Cir. 1992). These attempts fall short of stating a plausible claim on which relief can be granted.

Therefore, the Court OVERRULES Plaintiffs Objection regarding the Magistrate Judge's
conspiracy conclusions.
B.

Service

Next, Plaintiff contends the Magistrate Judge erred in directing service of his Complaint

upon Matt Peeples. Plaintiff alleges Defendant Peeples is not the liable party since he is no

longer employed by the Georgia Department of Corrections.

Instead, Plaintiff contends the

Georgia Department of Corrections is the proper entity upon which his Complaint should have

been served. Plaintiff maintains the Magistrate Judge's "'deceitful aim' is to place Plaintiffs
recovery resource in a state where Plaintiff has no recovery party liable for his punitive and
compensatory collections, using Matt Peeples as a decoy to annihilate my chances of collecting
punitive and compensatory damages[.]" (Doc. 23, p. 6.)

A lawsuit against a state official or a state agency in its official capacity is no different

from a suit against a state itself; such a defendant is immune.
Police, 491 U.S. 58, 71 (1989).

Will v. Mich. Dep't of State

In enacting 42 U.S.C. § 1983, Congress did not intend to

abrogate "well-established immunities or defenses" under the common law or the Eleventh
Amendment. Id at 67. Because the State of Georgia would be the real party in interest in a suit

against the Georgia Department of Corrections, the Eleventh Amendment immunizes this
department from suit. Free v. Granger, 887 F.2d 1552, 1557 (11th Cir. 1989). Thus, Plaintiffs

putative claims against the Georgia Department of Corrections would be dismissed. Plaintiffs
concern that he will not be able to ultimately recover from a party who is no longer employed by

the Department of Corrections is of no consequence. This Court's function in reviewing a
Section 1983 complaint is to determine the legally viable defendants against whom the prisoner-

plaintiff has set forth facts sufficient to indicate his constitutional rights were violated. The

Court must make this judgment irrespective of a plaintiff s likelihood of recovery in the event of

a judgment in the plaintiffs favor.

For these reasons, the Court OVERRULES Plaintiffs

Objection to the Magistrate Judge's conclusions on service ofthe Complaint.1
C.

Assertion not Addressed in the Magistrate Judge's Report

Plaintiff maintains the Magistrate Judge did not address his contention Defendant Peeples

called him a racially derogatory term on one occasion. (Doc. 23, p. 7.) To the extent Plaintiff
wishes Defendant Peeples' alleged racial epithet to form the basis of a separate cause of action,
he cannot do so. Defendant Peeples' alleged racial comments, "while undoubtedly offensive and

inappropriate, cannot form the basis of a § 1983 claim." See Evans v. City of Zebulon, Ga., 351
F.3d 485, 495-96 (11th Cir. 2003), vacated by 364 F.3d 1298 (11th Cir. 2004), rehearing en
banc granted on other grounds, Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005); Kelly v.
Rice, 375 F. Supp.2d 203, 209-10 (S.D.N.Y. 2005) ("'the use of [vile] language, no matter how

abhorrent or reprehensible, cannot form the basis for a § 1983 claim.'") (citation omitted);

Haussman v. Fergus, 894 F. Supp. 142, 149 (S.D.N.Y. 1995); Purcell v. Coughlin, 790 F.2d 263,
265 (2d Cir. 1986); Wright v. Santoro, 714 F. Supp. 665, 666-67 (S.D.N.Y. 1989)

("'discriminatory statements reflecting racial prejudice not actionable under § 1983 where not

shown to be connected with physical injury.'") (citation omitted), affd, 891 F.2d 278 (2d Cir.
1989); see also Brand v. Hamilton, No. 3:10CV377 LAC MD, 2010 WL 4973358, at *5 (N.D.

Fla. Oct. 27, 2010), report and recommendation adopted, No. 3:10CV377 LAC MD, 2010 WL

4955400 (N.D. Fla. Dec. 1, 2010). Instead, as the Magistrate Judge correctly inferred, this

allegation is part and parcel of Plaintiffs viable Eighth Amendment claim. Thus, the Court
OVERRULES this Objection.

1 Should Plaintiffpersist in his assertion that the Georgia Department of Corrections is the only proper
party to serve, he may so notify the Court. The Court will then dismiss Defendant Peeples and close
Plaintiffs case, as he will fail to set forth a viable Section 1983 claim against a proper party.

D.

Proper Address for Defendant Peeples

Finally, Plaintiff notes that the Magistrate Judge directed him to provide the Court with a
proper address for Defendant Peeples so that he may be served with a copy of Plaintiffs

Complaint. Plaintiff avers this directive is fraudulent because Defendant Peeples is "a no longer
involved defendant" in this case.

(Id at p. 8.)

As stated above, Defendant Peeples is the

properly named Defendant in this case. Thus, this Objection, too, is OVERRULED.

In addition, the Court observes that Defendant Peeples has not been served with a copy of
Plaintiffs Complaint.

(Doc. 25) (notification of returned mail addressed to Matt Peeples at

Rogers State Prison). As Plaintiff is aware, he has the responsibility of ensuring that this Court

has the proper address so that Defendant Peeples may be served. (Doc. 19, p. 8) ("Plaintiff is
advised he is responsible for providing a proper address for Defendant Peeples so that he may be
served with this Order and his Complaint. Plaintiffs failure to do so in a timely manner may
result in the dismissal of this cause of action.") Accordingly, Plaintiff is DIRECTED to provide

this Court with a proper address for Defendant Peeples so that he can be served with a copy of

Plaintiffs Complaint within fourteen days of the date of this Order. Plaintiffs failure to do
so or to otherwise show good cause as to why he cannot follow this Court's directives shall result
in the dismissal of this cause of action.

III.

Plaintiffs Motion for Copies (Doc. 27)

Plaintiff has filed a Motion for Copies and requests that the Clerk of Court provide him

with copies of Documents Numbered 11, 12, 15, 16, 23, and 24. (Doc. 27.) This Motion is
GRANTED. The Clerk of Court is directed to provide Plaintiff with copies of his requested

documents at a cost of $0.50 per page, to be charged to Plaintiffs inmate account.

IV.

Motion for Injunctive Relief (Doc. 28)

By this Motion, Plaintiff seeks to be transferred to another prison. To be entitled to
injunctive relief, the movant must show: (1) a substantial likelihood of ultimate success on the

merits; (2) an injunction or protective order is necessary to prevent irreparable injury; (3) the
threatened injury outweighs the harm the injunction or protective order would inflict on the nonmo vant; and (4) the injunction or protective order would not be adverse to the public interest.

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005). In this Circuit,

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,
Fla., 272 F.3d 1318, 1326 (11th Cir. 2001). Plaintiff has not shown that he has satisfied the

prerequisites in order to be entitled to an injunction. Specifically, Plaintiff has not shown the
likelihood of success on the merits of his claims.
discretion of the Department of Corrections.

The placement of prisoners is at the sole

See Meachum v. Fano, 427 U.S. 215 (1976).

Accordingly, Plaintiffs Motion for Injunctive Relief is DENIED.
V.

Motion for Out of Time Appeal/Reconsideration (Doc. 40)

Plaintiff also has filed a Motion for Out of Time Appeal-Reconsideration-Certiorari.

Plaintiff wishes to have this Court grant him an "out of time-appeal writ of certiorari" regarding

the Eleventh Circuit Court of Appeals' mandate.

(Doc. 40, p. 1.)

Plaintiffs Motion is

DISMISSED. Should Plaintiff wish to appeal the Eleventh Circuit's judgment, the appropriate
court in which to do so is the United States Supreme Court.

To the extent Plaintiff seeks

reconsideration of the Eleventh Circuit's judgment, the appropriate course is to file a motion for
reconsideration with the Eleventh Circuit.

VI.

Motions for Status (Docs. 43,44)
Finally, Plaintiff filed two Motions for Status, and both of these Motions concern the

status of Plaintiffs Objections to the Magistrate Judge's Report and Recommendation.
(Docs. 43, 44.) Because the Court has now ruled on Plaintiffs Objections to the Magistrate
Judge's Report and Recommendation, Plaintiffs Motions are DISMISSED as moot.
VII.

Conclusion

Plaintiffs Objections are OVERRULED. The Court CONCURS with and ADOPTS

the Magistrate Judge's Report and Recommendation, as supplemented herein. Accordingly, the
Court DISMISSES Plaintiffs conspiracy, retaliation, and supervisory liability claims. Also, the
Court DISMISSES April Hodges, Brad Hooks, Stanley Williams, Eyvette Cook, Carl Foust,

Debra McCloud, and Nancy Garrett as named Defendants. In addition, the Court GRANTS

Plaintiffs Motion for Copies, (doc. 27); DENIES Plaintiffs Motion for Injunctive Relief,
(doc. 28); DISMISSES Plaintiffs Motion for Out of Time Appeal, (doc. 40); and DISMISSES
as moot Plaintiffs Motions for Status, (docs. 43,44).

SO ORDERED, this b?^ day ofJanuary, 2016.

HONORABLE J. RANDAL HALL
UNITED SJATES DISTRICT JUDGE
-SOUTHERN DISTRICT OF GEORGIA