Watson v. Toole et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that Plaintiff's claims against Defendants "GSP Administration," Milton Smith, Robert Toole, John Paul, and Windell Fowler be dismissed and that Plaintiff's request for declaratory relief and injunctive relief be denied re 1 Complaint. Objections to R&R due by 3/16/2015. Signed by Magistrate Judge R. Stan Baker on 2/26/2015. (ca)

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

JOSHUA WATSON,
Plaintiff,
v.
ROBERT TOOLE; JOHN PAUL;
WINDELL FOWLER; MILTON SMITH;
JANET BREWTON; MADIA WEST;
MISS MAGAHA; and MARLENE PARKER,
Defendants.

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CIVIL ACTION NO.: CV614-116

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Georgia State Prison in Reidsville, Georgia,
filed a cause of action pursuant to 42 U.S.C. § 1983 contesting certain conditions of his
confinement. The undersigned has conducted an initial review of Plaintiff’s action as required
by 28 U.S.C. § 1915A (“Section 1915A”) and, for the reasons set forth below, recommends that
Plaintiff’s claims against Defendants “GSP Administration,” Milton Smith, Robert Toole, John
Paul, and Windell Fowler be dismissed and that Plaintiff’s requests for declaratory relief and
injunctive relief be denied. The Court orders that a copy of Plaintiff= s Complaint and a copy of
this Order shall be served upon Defendants Madia West, Miss Magaha, Marlene Parker, and
Janet Brewton. The Court also provides additional instructions herein to Plaintiff and
Defendants pertaining to the future litigation of this action which the parties are urged to read
and follow.
In civil actions in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity, Section 1915A requires the 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 of the complaint that is frivolous, malicious, fails to state a claim upon
which relief may granted, or seeks monetary damages from a defendant who is immune from
such relief. 28 U.S.C. §§ 1915A(b)(1) & (2).
In conducting this initial review, the Court must ensure that a prisoner plaintiff has
complied with the mandates of the Prison Litigation Reform Act, 28 U.S.C. §§ 1915 & 1915A.
However, 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. Dugger, 860 F.2d 1010, 1011 (11th Cir. 1988).In addition, the Court is guided
by the Eleventh Circuit’s opinion in Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).
In Mitchell, 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 the conditions at Georgia State Prison (“GSP”) have caused him “to lose
it at times,” which he has explained to Defendants Miss Magaha, a mental health doctor;
Marlene Parker, a mental health nurse; and Madia West, the Director of the Mental Health
Department. (Doc. 1, p. 2.) Plaintiff specifically asserts he has told Defendants Magaha, Parker,
and West that he has been forced to be in areas with gang members with whom he had

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previously fought and who currently want to kill him. (Id.) Plaintiff contends Defendant Janet
Brewton, who was the Unit Manager over “A” unit and who is currently the Deputy Warden of
Care and Treatment, informed him that he was going to be placed in the G building (which is
presumably where these alleged gang members also were housed) whether he liked it or not.
(Id.) Plaintiff avers he began cutting himself over a seven (7) day period, and Defendant
Brewton told him he would be placed in another building “if [his] behavior improve[d].” (Id.)
Plaintiff also avers he has become mentally unstable at times because he has been in a cell with
another inmate on a 24-hour a day, indefinite lockdown, which has caused Plaintiff to cut
himself and mutilate his arms, legs, and shoulders. (Id.) According to Plaintiff, he has informed
Defendants Magaha, Parker, West, and Brewton that he has mutilated himself and will continue
to do so if his living situation does not improve, but they have done nothing in response. (Id. at
p. 3.)
Plaintiff contends “GSP Administration” uses psychological tactics, such as providing
inadequate food portions, disallowing showers and yard time, and refusing to clean the cells, to
make inmates lash out against the administration or themselves. (Id. at p. 2.) Plaintiff alleges he
has written several grievances about these matters, but Defendant Milton Smith, the Chief
Counselor and Grievance Coordinator, has returned his grievances without a grievance number,
rejected his grievances, and/or has failed to provide an appeal form. (Id. at pp. 3–4.) Plaintiff
contends Defendant Robert Toole, the Warden at GSP, was “informed” but did nothing to help
him. (Id. at p. 5.) Plaintiff also contends Defendant John Paul, the Warden of Care and
Treatment, was “informed of everything, including torterous (sic) conditions, excessive self
mutilation, but did nothing to ensure” Plaintiff’s safety and health. (Id.) Finally, Plaintiff
contends Defendant Windell Fowler, the Warden of Security, allowed the harsh conditions to

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occur and “was fully aware every time” Plaintiff cut himself, yet Defendant Fowler did nothing
to ensure his safety and health. (Id.) Plaintiff seeks monetary damages, injunctive relief, and a
declaratory judgment.
A plaintiff must set forth “a short and plain statement of the claim showing that [he] is
entitled to relief.” F ED . R. C IV . P. 8(a)(2). In order to state a claim for relief under 42 U.S.C. §
1983, a plaintiff must satisfy two elements. First, 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). Second, a
plaintiff must allege that the act or omission was committed by “a person acting under color of
state law.” Id. Plaintiff’s claims against “GSP Administration” do not satisfy Rule 8 for the
reasons set forth in footnote 1 and because Plaintiff has not shown that “GSP Administration” is
a “person” within the meaning of § 1983.
Further, Plaintiff’s claims regarding the general conditions of his confinement are not
related to his deliberate indifference claims. The Court will not allow the joinder of unrelated
claims. F ED . R. C IV . P. 20(a) (a plaintiff may not join unrelated claims and various defendants
unless the claims “arise out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all defendants will arise in the
action.”). Any of Plaintiff’s claims against “GSP Administration” should be dismissed . 1

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Plaintiff submitted two (2) affidavits in support of his Complaint. (Docs. 6, 7.) Plaintiff’s affidavits
either set forth allegations which are not related to his deliberate indifference claims, see F ED . R. C IV . P.
20(a), or appear to be set forth on behalf of his fellow inmates. “An individual unquestionably has the
right to litigate his own claims in federal court, before both the district and appellate courts. . . . The right
to litigate for oneself, however, does not create a coordinate right to litigate for others.” Walker v.
Brown, No. CV 112-105, 2012 WL 4049438, at *1 (S.D. Ga. Aug. 14, 2012) (citing Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (holding that a pro se prisoner may not litigate the
interests of other prisoners in class action)), report and recommendation adopted by No. CV 112-105,
2012 WL 4052038 (S.D. Ga. Sept. 13, 2012).

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Moreover, alleged transgressions involving grievance procedures do not give rise to
stand-alone claims under § 1983. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per
curiam); see also, Baker v. Rexroad, 159 F. App’x 61 (11th Cir. 2005) (finding that inmates
neither have a liberty interest in an investigation based upon their inmate grievance, nor a liberty
interest in the inmate grievance system). Further, “[t]here is no right to a particular type of
process in the handling of prison grievances. . . . [F]ederal courts simply do not sit as the
ultimate appellate tribunal for prison grievance procedures.” Rienholtz v. Campbell, 64 F.
Supp.2d 721, 731 (W.D. Tenn. 1999). Accordingly, Plaintiff’s assertions that Defendant Wilson
did not provide grievance numbers, rejected his grievance, or failed to provide him with appeal
forms are not cognizable under section 1983.2 Plaintiff’s claims against Defendant Milton Smith
should be dismissed .
Additionally, 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.
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 plaintiff's 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
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The undersigned notes Plaintiff’s assertion that he was denied grievance appeal form does not set forth
a viable constitutional violation. Rather, this assertion would only speak to whether Plaintiff exhausted
his available administrative remedies. See Bryant v. Rich, 530 F.3d 1368, 1373 (11th Cir. 2008) (noting
the plaintiff’s assertion that prison officials denied him access to grievance forms raised a genuine issue
of material fact about whether administrative remedies were available to the plaintiff).

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deprivation that he then failed to correct.” Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011).
Plaintiff’s allegations against Defendants Toole, Paul, and Fowler fail to set forth any facts
indicating that these Defendants were personally involved in the alleged violations of Plaintiff’s
constitutional rights or that any of these Defendants directed their subordinates to violate
Plaintiff’s constitutional rights. Instead, Plaintiff’s allegations against Defendants Toole, Paul,
and Fowler reveal nothing more than allegations against them in their supervisory positions.
In addition, Plaintiff’s claims against Defendants Toole, Paul, and Fowler are based on
conclusory statements, which also are insufficient bases for liability under section 1983. “A
complaint must state a facially plausible claim for relief, and ‘[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.’” Wooten v. Quicken Loans, Inc., 626
F.3d 1187, 1196 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of
action” does not suffice. Ashcroft, 556 U.S. at 678.
“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. Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.” Id. (internal punctuation and citation
omitted). While a court must accept all factual allegations in a complaint as true, this tenet “is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. Id. Plaintiff’s claims against
Defendants Toole, Paul, and Fowler, which are comprised of conclusory statements, should be
dismissed.

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Plaintiff has requested that this Court enter a preliminary and permanent injunction
against Defendants. To be entitled to an injunction, 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 non-movant; 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 all four (4) of the prerequisites in order to be entitled to an
injunction. Specifically, Plaintiff has failed to show that he has a substantial likelihood of
success on the merits of his surviving claims. Plaintiff’s request for injunctive relief should be
denied .
Plaintiff also requests this Court enter a judgment declaring that the acts and omissions of
the Defendants violate the Constitution and the laws of the United States. “In a case of actual
controversy within its jurisdiction . . . any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be sought. Any such
declaration shall have the force and effect of a final judgment or decree and shall be reviewable
as such.” 28 U.S.C. § 2201(a). The Declaratory Judgment Act “does not, of itself, confer
jurisdiction upon the federal courts; a suit brought under the Act must state some independent
source of jurisdiction[.]” Mata v. Sec’y of Dep’t of Homeland Sec., 426 F. App’x 698, 699 (11th
Cir. 2011) (quoting Borden v. Katzman, 881 F.2d 1035, 1037 (11th Cir. 1989)). A party who is

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seeking to invoke the court's jurisdiction “must show: ‘(1) that [he] personally [has] suffered
some actual or threatened injury as a result of the alleged conduct of the defendant; (2) that the
injury fairly can be traced to the challenged action; and (3) that it is likely to be redressed by a
favorable decision.’” Am. Ins. Co. v. Evercare Co., 430 F. App’x 795, 798 (11th Cir. 2011)
(quoting GTE Directories Publ’g Corp. v. Trimen Am., Inc., 67 F.3d 1563, 1567 (11th Cir.
1995)). “[T]he question in each case is whether the facts alleged, under all the circumstances,
show that there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. (internal
citation and punctuation omitted). Plaintiff has not shown that he is likely to receive a favorable
decision in this case. Instead, and as noted below, Plaintiff has merely set forth an arguable
claim for relief. Plaintiff’s request for a declaratory judgment should also be denied .
However, the Eighth Amendment’s proscription against cruel and unusual punishment
imposes a constitutional duty upon prison officials to take reasonable measures to guarantee the
safety and health of prison inmates. “‘To show a violation of [his] Eighth Amendment rights, [a
p]laintiff must produce sufficient evidence of (1) a substantial risk of serious harm; (2) the
defendants’ deliberate indifference to that risk; and (3) causation.’” Smith v. Reg’l Dir. of Fla.
Dep’t of Corr., 368 F. App’x 9, 14 (11th Cir. 2010) (quoting Purcell ex rel. Estate of Morgan v.
Toombs Cnty., Ga., 400 F.3d 1313, 1319 (11th Cir. 2005)).
These allegations, when read in a light most favorable to the Plaintiff, arguably state
colorable claims for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A against Defendants
West, Magaha, Parker, and Brewton for alleged violations of the Eighth Amendment. A copy of
Plaintiff= s Complaint and a copy of this Order shall be served upon Defendants West, Magaha,
Parker, and Brewton by the United States Marshal without prepayment of cost. If any Defendant

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elects to file a Waiver of Reply, then she must file either a dispositive motion or an answer to the
complaint within thirty (30) days of the filing of said Waiver of Reply.
INSTRUCTIONS TO DEFENDANTS
Since the Plaintiff is authorized to proceed in forma pauperis, service must be effected by
the United States Marshal. F ED . R. C IV . P. 4(c)(3). In most cases, the marshal will first mail a
copy of the complaint to the Defendants by first-class mail and request that the Defendants waive
formal service of summons. F ED . R. C IV . P. 4(d); Local Rule 4.7. Individual and corporate
defendants have a duty to avoid unnecessary costs of serving the summons, and any such
defendant who fails to comply with the request for waiver must bear the costs of personal service
unless good cause can be shown for the failure to return the waiver. F

ED .

R. C IV . P. 4(d)(2).

Generally, a defendant who timely returns the waiver is not required to answer the complaint
until sixty (60) days after the date that the marshal sent the request for waiver. F

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R. C IV . P.

4(d)(3).
IT IS FURTHER ORDERED that Defendants are hereby granted leave of court to take
the deposition of the Plaintiff upon oral examination. F ED . R. C IV . P. 30(a). Defendants shall
ensure that the Plaintiff= s deposition and any other depositions in the case are taken within the
140-day discovery period allowed by this Court’s local rules.
In the event that Defendants take the deposition of any other person, Defendants are
ordered to comply with the requirements of Federal Rule of Civil Procedure 30 as set forth
herein. As the Plaintiff will likely not be in attendance for such a deposition, Defendants shall
notify Plaintiff of the deposition and advise him that he may serve on Defendants, in a sealed
envelope, within ten (10) days of the notice of deposition, written questions the Plaintiff wishes

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to propound to the witness, if any. Defendants shall present such questions to the witness
seriatim during the deposition. F ED . R. C IV . P. 30(c).
INSTRUCTIONS TO PLAINTIFF
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants or, if appearance
has been entered by counsel, upon their attorneys, a copy of every further pleading or other
document submitted for consideration by the court. Plaintiff shall include with the original paper
to be filed with the Clerk of Court a certificate stating the date on which a true and correct copy
of any document was mailed to Defendants or their counsel. F ED . R. C IV . P. 5. “Every pleading
shall contain a caption setting forth the name of the court, the title of the action, [and] the file
number.” F ED . R. C IV . P. 10(a). Any paper received by a district judge or magistrate judge
which has not been filed with the Clerk or which fails to include a caption or a certificate of
service will be disregarded by the court and returned to the sender.
Plaintiff is charged with the responsibility of immediately informing this court and
defense counsel of any change of address during the pendency of this action. Local Rule 11.1.
Failure to do so may result in dismissal of this case.
Plaintiff has the responsibility for pursuing this case. For example, if Plaintiff wishes to
obtain facts and information about the case from Defendants, Plaintiff must initiate discovery.
See generally F ED . R. C IV . P. 26, et seq . Plaintiff does not need the permission of the court to
begin discovery, and Plaintiff should begin discovery promptly and complete it within 120 days
after the filing of the answer. Local Rule 26.1.
Interrogatories are a practical method of discovery for incarcerated persons. See F

ED . R.

C IV . P. 33. Interrogatories may be served only on a party to the litigation, and, for the purposes
of the instant case, this means that interrogatories should not be directed to persons or

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organizations who are not named as Defendants. Interrogatories shall not be filed with the court.
Local Rule 26.6. Interrogatories are not to contain more than twenty-five (25) questions. F

ED .

R. C IV . P. 33(a). If Plaintiff wishes to propound more than twenty-five (25) interrogatories to a
party, Plaintiff must have permission of the court. If Plaintiff wishes to file a motion to compel,
pursuant to Federal Rule of Civil Procedure 37, he should first contact the attorneys for
Defendants and try to work out the problem; if Plaintiff proceeds with the motion to compel, he
should also file a statement certifying that he has contacted opposing counsel in a good faith
effort to resolve any dispute about discovery. F ED . R. C IV . P. 26(c), 37(a)(2)(A); Local Rule
26.7. Plaintiff has the responsibility for maintaining his own records of the case. If Plaintiff
loses papers and needs new copies, he may obtain them from the Clerk of Court at the standard
cost of fifty ($.50) cents per page.
If Plaintiff does not press his case forward, the court may dismiss it for want of
prosecution. F ED . R. C IV . P. 41; Local Rule 41.1.
It is the Plaintiff = s duty to cooperate fully in any discovery which may be initiated by
Defendants. Upon no less than five (5) days’ notice of the scheduled deposition date, the
Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath or
solemn affirmation, any question which seeks information relevant to the subject matter of the
pending action. Failing to answer questions at the deposition or giving evasive or incomplete
responses to questions will not be tolerated and may subject Plaintiff to severe sanctions,
including dismissal of this case.
As the case progresses, Plaintiff may receive a notice addressed to “counsel of record”
directing the parties to prepare and submit a Joint Status Report and a Proposed Pretrial Order.
A plaintiff proceeding without counsel may prepare and file a unilateral Status Report and is

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required to prepare and file his own version of the Proposed Pretrial Order. A plaintiff who is
incarcerated shall not be required or entitled to attend any status or pretrial conference which
may be scheduled by the court.

ADDITIONAL INSTRUCTIONS TO PLAINTIFF REGARDING MOTIONS TO
DISMISS AND MOTIONS FOR SUMMARY JUDGMENT
Under this Court s Local Rules, a party opposing a motion to dismiss shall file and serve
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his response to the motion within fourteen (14) days of its service. “Failure to respond shall
indicate that there is no opposition to a motion.” Local Rule 7.5. Therefore, if you fail to
respond to a motion to dismiss, the Court will assume that you do not oppose the Defendants’
motion.
Your response to a motion for summary judgment must be filed within twenty one (21)
days after service of the motion. Local Rules 7.5, 56.1. The failure to respond to such a motion
shall indicate that there is no opposition to the motion. Furthermore, each material fact set forth
in the Defendants’ statement of material facts will be deemed admitted unless specifically
controverted by an opposition statement. Should Defendants file a motion for summary
judgment, you are advised that you will have the burden of establishing the existence of a
genuine dispute as to any material fact in this case. That burden cannot be carried by reliance on
the conclusory allegations contained within the complaint. Should the Defendants’ motion for
summary judgment be supported by affidavit, you must file counter-affidavits if you desire to
contest the Defendants’ statement of the facts. Should you fail to file opposing affidavits setting
forth specific facts showing that there is a genuine dispute for trial, the consequences are these:
any factual assertions made in Defendants’ affidavits will be accepted as true and summary
judgment will be entered against the Plaintiff pursuant to Federal Rule of Civil Procedure 56.

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SO ORDERED and REPORTED and RECOMMENDED , this 26th day of
February, 2015.

____________________________________
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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