Monger v. Johnson et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the 1 Complaint be DISMISSED for failure to state a claim and that this case be CLOSED. It is further recommended that Monger be denied leave to proceed in forma pauperis on appeal. Any part y seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 1/25/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/11/2016. (csr)

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

MARCUS WADE MONGER,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-89

v.
WAYNE JOHNSON; and UNIT MANAGER
ERIC SMOKES,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Smith State Prison in Glennville, Georgia, submitted
a Complaint in the above captioned action pursuant to 42 U.S.C. § 1983. (Doc. 1.) For the
reasons which follow, I RECOMMEND that the Court DISMISS this Complaint for failure to
state a claim and CLOSE this cause of action. Additionally, I RECOMMEND the Court
DENY Plaintiff leave to appeal in forma pauperis.
BACKGROUND
Plaintiff filed this action contesting certain conditions of his confinement. Specifically,
Plaintiff contends that Defendants have violated his rights to due process by placing him in the
Tier II Administrative Segregation (“the Tier II Unit”). (Doc. 1, p. 5.) Plaintiff alleges that he
was placed in the unit due to his being “improperly classified” as a gang member. Id. Plaintiff
states that he was made to appeal his placement by Defendant Johnson, but that appeal was
ultimately unsuccessful. (Id. at p. 5–6.) He contends that Defendant Smokes made allegations
against Plaintiff which are untrue and which apparently ultimately resulted in Plaintiff remaining
in the Tier II Unit. Id. Plaintiff remains in the Tier II Unit. Id.

STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. Under 28
U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment
of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows
an inability to pay the filing fee and also includes a statement of the nature of the action which
shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must
dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be
granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the
Court must review a complaint in which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is
frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that

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standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”). The requisite review of Plaintiff’s
Complaint raises several doctrines of law which require the dismissal of the Complaint.
DISCUSSION
As an initial matter, this Court must give deference to prison officials on matters of
prison administration and should not meddle in issues such as the contents of a prisoner’s file.
Courts traditionally are reluctant to interfere with prison administration and discipline, unless
there is a clear abuse of discretion. See Procunier v. Martinez, 416 U.S. 396, 404–05 (1974)
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(“Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison
administration [because] . . . courts are ill equipped to deal with the increasingly urgent problems
of prison administration and reform.”), overruled on other grounds by Thornburgh v. Abbott,
490 U.S. 401 (1989). In such cases, “[d]eference to prison authorities is especially appropriate.”
Newman v. State of Ala., 683 F.2d 1312, 1320–21 (11th Cir. 1982) (reversing district court’s
injunction requiring release of prisoners on probation because it “involved the court in the
operation of the State’s system of criminal justice to a greater extent than necessary” and less
intrusive equitable remedy was available); see also Thornburgh, 490 U.S. at 407–08
(“Acknowledging the expertise of these officials and that the judiciary is ‘ill equipped’ to deal
with the difficult and delicate problems of prison management, this Court has afforded
considerable deference to the determinations of prison administrators who, in the interest of
security, regulate the relations between prisoners and the outside world.”); Bell v. Wolfish, 441
U.S. 520, 547 (1979) (acknowledging that courts have “accorded wide-ranging deference [to
prison administrators] in adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institutional security.”);
Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 129 (1977) (“Prison officials
must be free to take appropriate action to ensure the safety of inmates and corrections personnel
and to prevent escape or unauthorized entry.”); Bradley v. Hart, No. CV513-127, 2015 WL
1032926, at *10 (S.D. Ga. Mar. 9, 2015) (“It does not appear to be appropriate for this Court to
order that prison officials remove entries from Plaintiff’s file, which may or may not be
accurate.”).
Further, in order to state a claim for relief under Section 1983, a plaintiff must satisfy two
elements. First, a plaintiff must allege that an act or omission deprived him “of some right,

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privilege, or immunity secured by the Constitution or laws of the United States.” Hale v.
Tallapoosa Cty., 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 alleges
that Defendants violated his due process rights by placing him in the Tier II Unit.
I.

Due Process Claims
A.

Procedural due process

An inmate states a cognizable claim for the deprivation of his procedural due process
rights under the Fourteenth Amendment when he alleges the deprivation of a constitutionally
protected liberty or property interest, state action, and constitutionally inadequate process.
Shaarbay v. Palm Beach Cty. Jail, 350 F. App’x 359, 361 (11th Cir. 2009) (citing Cryder v.
Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). “Prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not
apply.” Wolff v. McDonnell, 418 U.S. 539, 556, (1974). Rather, “a disciplinary proceeding,
whose outcome will ‘impose[ ] atypical and significant hardship on the inmate’ must ensure the
following due process rights: (1) advance written notice of the claimed violation, (2) a written
statement by the fact finders as to the evidence relied upon and the reasons for the disciplinary
action taken, and (3) an opportunity to call witnesses and present documentary evidence in his
defense.” Asad v. Crosby, 158 F. App’x 166, 173 (11th Cir. 2005) (citing Wolff, 418 U.S. at
563–67).
Plaintiff fails to allege any facts leading to the plausibility that his placement in the Tier
II unit was punitive in nature. In fact, on facts similar to the case at hand, this Court has held that
an inmate’s placement in administrative segregation is a non-punitive action. Bradley v. Hart,
No. CV513-127, 2015 WL 1032926, at *5 (S.D. Ga. Mar. 9, 2015), appeal dismissed (July 8,

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2015). Additionally, Plaintiff had not alleged that his placement in the Tier II Unit has result in
any atypical or significant hardship. Moreover, while Plaintiff’s Complaint establishes that he
was dissatisfied with the outcome of his process at Ware State Prison, he does not allege any
facts to lead to the conclusion that he was denied insufficient process. For all of these reasons,
Plaintiff cannot sustain a procedural due process claim against Defendants.
B.

Substantive Due Process

“The Due Process Clause protects against deprivations of >life, liberty, or property
without due process of law.’” Kirby v. Siegelman, 195 F.3d 1285, 1290 (11th Cir. 1999)
(quoting U.S. CONST. AMEND. XIV). The Supreme Court has identified two situations in which
a prisoner can be deprived of liberty such that the protection of due process is required: (1) there
is a change in the prisoner’s conditions of confinement so severe that it essentially exceeds the
sentence imposed by the court; and (2) the State has consistently given a benefit to prisoners,
usually through a statute or administrative policy, and the deprivation of that benefit “imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Id. at 1290–91 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
In Sandin, the United States Supreme Court addressed whether the punishment inmate
Conner received for a disciplinary violation was sufficient to invoke a liberty interest protected
by the Due Process Clause. 515 U.S. at 472. Following a disciplinary conviction, Conner
received 30 days’ disciplinary segregation in a Special Housing Unit. Id. at 475. After noting
that the segregation was a form of punishment, the Court concluded that it was not a dramatic
departure from the conditions of Conner=s indeterminate sentence. Id. at 485. The Supreme
Court held there is no right inherent in the Due Process Clause for an inmate not to be placed in
disciplinary segregation nor is there a state-created liberty interest to be free from disciplinary

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segregation. Id. at 487. The Court determined that the conditions of disciplinary segregation at
the prison where Conner was incarcerated were virtually indistinguishable from the conditions of
administrative segregation and protective custody. Id. at 486. Also, the Court noted that the
conditions of disciplinary segregation were not markedly different from the conditions in general
population. Id. The Court concluded that the conditions of disciplinary segregation did not
impose an “atypical, significant deprivation in which a State might conceivably create a liberty
interest.” Id. Thus, the Court determined that Conner was not entitled to due process protection.
Id. at 487. The Court observed that this holding was a return to the due process principles of
Wolff and Meachum v. Fano, 427 U.S. 215 (1976), which required an inmate to suffer a
“grievous loss” before a liberty interest could be found. Id. at 478–83. The Sandin Court ruled
that in the future, liberty interests “will be generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected manner as to give rise to protection by
the Due Process Clause of its own force, (citations omitted), nonetheless imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 480,
484; see also Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998) (affirming that two
months’ confinement to administrative segregation was not a deprivation of a constitutionally
protected liberty interest).
An inmate, therefore, has a liberty interest related to his confinement in segregation only
if the state has created a liberty interest through the nature of the conditions. Sandin, 515 U.S. at
487. To determine whether the state has created a liberty interest, courts must look to the nature
of the conditions of the confinement in relation to the ordinary incidents of prison life, rather
than to the language of the regulations regarding those conditions. Id. at 484; Wallace v.
Hamrick, 229 F. App’x 827, 830 (11th Cir. 2007). Courts should also consider the duration of

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the confinement in segregation when determining if the confinement constitutes an atypical and
significant hardship. See Al–Amin v. Donald, 165 F. App’x 733, 738 (11th Cir. 2006); see also
Williams v. Fountain, 77 F.3d 372, 374 (11th Cir. 1996).
In the present action, Plaintiff has not plausibly alleged that his placement in the Tier II
Unit deprives him of a liberty interest inherent in the Constitution. Additionally, Plaintiff fails to
state what liberty interest is at stake from his placement in the unit. Moreover, Plaintiff fails to
set forth any facts which plausibly could lead to the conclusion that the conditions of the Tier II
Unit impose an atypical and significant hardship on him relative to the ordinary incidents of
prison life.

Thus, Plaintiff’s confinement in the Tier II Unit does not deprive him of a

constitutional liberty interest or a state-created liberty interest to which due process could attach.
In short, Plaintiff fails to set forth facts sufficient to render any substantive due process claim
plausible against Defendants.
II.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 1

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not take in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
1

A certificate of appealablity is not required in this Section 1983 action.

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theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action
is frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, this Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the numerous reasons set forth above, I RECOMMEND that the Court DISMISS
this action for failure to state a claim, CLOSE this case, and DENY Plaintiff leave to appeal in
forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in

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whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of January,
2016.

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

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