Lester v. Georgia Department of Corrections et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's claims against the Georgia Department of Corrections, Captain Mobley, and Officer Hill. Additionally, the Court should DISMISS Plaintiff's official capaci ty claims, supervisory liability claims, and his claims for excessive use of force re 1 Complaint filed by Layton Lester. 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 (Objections to R&R due by 1/26/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/12/2016. (ca)

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

LAYTON LESTER,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-110

v.
GEORGIA DEPARTMENT OF
CORRECTIONS; CAPTAIN MOBLEY;
OFFICER C. WILLIAMS; and OFFICER
HILL,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Georgia State Prison in Reidsville, Georgia,
submitted a Complaint in the above captioned action pursuant to 42 U.S.C. § 1983. (Doc. 1.)
The Court has conducted the requisite frivolity review of this Complaint. For the reasons which
follow, I RECOMMEND that the Court DISMISS Plaintiff’s claims against the Georgia
Department of Corrections, Captain Mobley, and Officer Hill. Additionally, I RECOMMEND
the Court DISMISS Plaintiff’s official capacity claims, supervisory liability claims, and his
claims for excessive use of force. However, Plaintiff’s arguably sets forth plausible claims that
Defendant Officer C. Williams disregarded Plaintiff’s serious medical needs and disregarded a
substantial risk to Plaintiff’s health and safety. Accordingly, these claims will proceed, and the
Court DIRECTS the United States Marshal to serve Defendant C. Williams with a copy of the
Complaint and this Order. Additionally, the Court provides instructions regarding the future
litigation of this case which the parties are urged to read and follow.

BACKGROUND
Plaintiff filed this action contesting certain conditions of his confinement at Georgia State
Prison. Specifically, Plaintiff contends that Defendants violated his rights during an incident on
July 9, 2015. (Doc. 1, p. 6.) On that date, Plaintiff returned to his cell from his shower and
placed his hands in the tray flap of his cell so that the officer could remove Plaintiff’s handcuffs.
Id. However, after the removal of the handcuffs, Plaintiff refused to move his hands in order to
prevent the officer from being able to secure the tray flap. Id. Then, Plaintiff threw three cups of
feces into the dorm area. Id. Plaintiff’s roommate returned from the shower, and Plaintiff again
refused to allow officers to secure the tray flap. Id.
Then, due to commotion in the dormitory, more officers were called into the area. Id.
Plaintiff pulled up the tray flap “so it [would] look secure.”

Id.

However, Defendant

Correctional Officer Williams noticed that the tray flap was unsecured and tried to secure it. Id.
However, before Williams could do so, Plaintiff again stuck his hand through the tray flap to
prevent it from being secured. Id. Defendant Williams tried to secure the tray flap while
Plaintiff’s arm was in the tray flap but was unsuccessful, and Defendant Captain Mobley told
Defendant Williams to stop. Id. Another correctional officer, Officer Burke, then came to
Plaintiff’s tray flap, and Plaintiff “tried to snatch his mace.” Id.
Another officer, Lieutenant Johnson, was then able to secure the tray flap in the open
position. Johnson then talked to Plaintiff, and Plaintiff relayed that he had a problem with ants in
his cell and needed the cell to be sprayed for bugs. Id. Defendant Captain Mobley then
interrupted the conversation and stated that Plaintiff and his roommate were not eating until
Defendant Mobley said they could. Id. Plaintiff told Defendant Mobley that if he and his
roommate were not fed, they would “tear up the cell.” Id.

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After Plaintiff’s roommate did not receive his lunch tray, Plaintiff and his roommate
“started tearing up the cell.” Id. Then, Plaintiff and his roommate set a fire in the cell. Id. One
officer poured water at the bottom of the cell door, but there was fire at the top of the door. Id.
Defendants Williams and Hill and another officer were outside the cell door. Id. These officers
sprayed a fire extinguisher though the side of the door. Id. Defendant Hill called out to Plaintiff
and his roommate “are yall [sic] ok in there.” Id. The officers sprayed the fire extinguisher
twice. Id. Plaintiff and his roommate stood at the back of the cell for at least ten minutes until
the room was cleared. Id.
Then, “some time later”, Plaintiff began to beat on the door of his cell with a pole off of
one of the beds, and Unit Manager Chambers came to his cell door. (Id. at pp. 6–7.) Plaintiff
explained the incident to Unit Manager Chambers and told him that his roommate had not been
fed. (Id. at p. 7.) The Unit Manager relayed that Defendant Mobley stated Plaintiff and his
roommate would be fed. Id. During this time, Defendant Officer Williams was “constantly
coming to the cell door opening the top flap window stating ‘now look at your stupid ass can’t
even breath [sic],’ ‘dumb muthafucker [sic],’ and laughing.” Id. At approximately 6:00 p.m.,
which was around the time of a shift change, Lieutenant Gottie and Lieutenant Cloud spoke with
Plaintiff about the incident. Id. Then they conducted a strip search of Plaintiff and his roommate
and moved them to another cell. Id. Plaintiff asked about a medical evaluation, and Defendant
Cloud responded “aint [sic] no medical.” Id. Plaintiff and his roommate remained in “strip
cell”, where Plaintiff was clothed in only his boxers and his shower shoes until after 1:30 a.m.
Id.
Plaintiff contends that Defendants violated his constitutional rights by slamming his arm
in the tray flap, by spraying the fire extinguisher at him, and by failing to obtain the proper

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medical care for him. Id. Plaintiff seeks monetary damages for injuries to his lungs which he
alleges he has had since the incident occurred. 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)).

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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
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.”).

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DISCUSSION
I.

Claims against Georgia Department of Corrections and Defendants in their Official
Capacities.
Plaintiff cannot sustain a Section 1983 claim against Defendants in their official

capacities. States are immune from private suits pursuant to the Eleventh Amendment and
traditional principles of state sovereignty. Alden v. Maine, 527 U.S. 706, 712–13 (1999).
Section 1983 does not abrogate the well-established immunities of a state from suit without its
consent. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989). Because a lawsuit against
a state agency or a state officer in his official capacity is “no different from a suit against the
[s]tate itself,” such defendants are immune from suit under Section 1983. Id. at 71. Here, the
State of Georgia would be the real party in interest in a suit against the Georgia Department of
Corrections as well as against Mobley, Williams, and Hill in their official capacities as
employees of the Department of Corrections. Accordingly, the Eleventh Amendment immunizes
these actors from suit in their official capacities. See Free v. Granger, 887 F.2d 1552, 1557 (11th
Cir. 1989). Absent a waiver of that immunity, Plaintiff cannot sustain any constitutional claims
against Defendants in their official capacities for monetary relief, and, therefore, the Court
should DISMISS all claims against the Georgia Department of Corrections and Defendants in
their official capacities.
II.

Supervisory Liability Claims
Section 1983 liability must be based on something more than a defendant’s supervisory

position or a theory of respondeat superior. 1 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).

1

The principle that respondeat superior is not a cognizable theory of liability under Section 1983 holds
true regardless of whether the entity sued is a state, municipality, or private corporation. Harvey v.
Harvey, 949 F.2d 1127, 1129–30 (11th Cir. 1992).

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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 deprivation that he then failed to correct.” Barr v. Gee, 437 F.
App’x 865, 875 (11th Cir. 2011).
It appears Plaintiff attempts to hold Captain Mobley liable based on his direct
involvement in the alleged constitutional violation as well as due to his supervisory role. As
discussed below, Plaintiff has failed to state a sufficient cause of action that Defendant Mobley
was personally involved in the denial of Plaintiff’s constitutional rights or that Mobley was
otherwise causally connected to any such violation.

Furthermore, Plaintiff cannot hold

Defendant Mobley, or any other Defendant, liable based on any respondeat superior or
supervisory liability theory, and the Court should DISMISS any such claim.
III.

Excessive Force Claims
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,
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). The Eighth Amendment’s proscription
against cruel and unusual punishment governs the amount of force that prison officials are
entitled to use against inmates. Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). An

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excessive force claim has two requisite parts: an objective and a subjective component. Sims v.
Mashburn, 25 F.3d 980, 983 (11th Cir. 1994). In order to satisfy the objective component, the
inmate must show that the prison official’s conduct was “sufficiently serious.”

Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The
subjective component requires a showing that the force used was “maliciously and sadistically
for the very purpose of causing harm” rather than “a good faith effort to maintain or restore
discipline.” Whitley v. Albers, 475 U.S. 312, 320–21 (1986). In order to determine whether the
force was used for the malicious and sadistic purpose of causing harm or whether the force was
applied in good faith, courts consider the following factors: the need for the exercise of force, the
relationship between the need for force and the force applied, the extent of injury that the inmate
suffered, the extent of the threat to the safety of staff and other inmates, and any efforts taken to
temper the severity of a forceful response. Skelly v. Okaloosa Cty. Bd. of Cty. Comm’rs, 456 F.
App’x 845, 848 (11th Cir. 2012) (quoting Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir.
2009)).
Plaintiff firsts contends that Defendants used excessive force when attempting to close
his tray flap while Plaintiff’s arm was still inside the flap. As an initial matter, Defendant Hill
was not present during this incident, and Plaintiff does not allege that Defendant Mobley tried to
close the tray flap. Indeed, Plaintiff asserts that Defendant Mobley told Defendant Williams to
stop trying to close the flap.

(Doc. 1, p. 6.)

Moreover, as Plaintiff’s own allegations

indisputably point out, Defendant Williams attempted to close the tray flap to restore order and
discipline that was disrupted by Plaintiff’s own actions. Plaintiff admits that he threw feces
through the opening, that he attempted to deceive the officers by making the flap look secured,
and that he attempted to grab an officer’s mace spray through the flap when the officer tried to

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secure the flap. (Doc. 1, pp. 6–7.) Thus, by Plaintiff’s own admission, the officers had a need to
secure the tray flap in order to eliminate a threat to the safety of the officers and the other
inmates. Brown v. Smith, 813 F.2d 1187, 1189–90 (11th Cir. 1987) (judgment in favor of an
officer who used force against an inmate to accomplish the “legitimate security purpose” of
getting the inmate into his cell.). Moreover, Defendant Williams hit Plaintiff’s arm with the tray
flap because Plaintiff stuck his arm into the opening before the flap could be closed to prevent it
from being closed. (Doc. 1, p. 6.) Thus, the flap hit Plaintiff’s arm because of Plaintiff’s own
disorderly and subversive actions. Lastly, Plaintiff does not allege that he suffered any injury
due to Defendant Williams’ attempt to close the tray flap. Consequently, Plaintiff has failed to
plausibly allege that the force used in attempting to close the tray flap was sufficiently serious or
that it was used maliciously and sadistically for the very purpose of causing harm rather than a
good faith effort to maintain or restore discipline.

Thus, the Court should DISMISS all

excessive force claims based on the closing of the tray flap.
Plaintiff’s excessive force claims based on the officers’ use of a fire extinguisher should
meet the same fate. As an initial matter, Defendant does not argue that Defendant Mobley was
present during the use of the fire extinguisher. Moreover, Plaintiff’s own allegations reveal that
the officers used the fire extinguisher not to cause Plaintiff harm but instead to prevent harm.
Again, Plaintiff caused the situation through his own subversive and dangerous actions by
starting a fire in his cell. Id. The fire had reached the top of the door to his cell, and pouring
water under the cell did not extinguish it. Consequently, there was an unquestionable need to use
the fire extinguisher to eliminate a threat to the safety of the officers and the inmates, including
Plaintiff. See Burke v. Bowns, No. 1:11-CV-00180-KOB, 2014 WL 4829470, at *18 (N.D. Ala.
Sept. 29, 2014) (officer’s use of the fire extinguisher to extinguish the fire set by plaintiff, even if

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a sufficient amount of the fumes entered the plaintiff’s cell to affect his lungs and eyes, was
clearly a good faith effort to maintain discipline and not a malicious and sadistic act in violation
of the plaintiff's Eighth Amendment rights). It is incredulous for Plaintiff to admittedly create
such a significant risk to his own safety and then claim that Defendant used excessive force by
merely taking steps necessary to eliminate that risk. For all of these reasons, the Court should
DISMISS Plaintiff’s claim for excessive force based on the use of the fire extinguisher.
IV.

Deliberate Indifference to Plaintiff’s Medical Needs and Risks to his Health and
Safety
Plaintiff contends that after the officers used the fire extinguisher, he remained in his cell

for hours and that he had difficulty breathing during this time due to the fumes from the fire
extinguisher. He argues that Defendant Officer Williams was “constantly coming to the cell
door opening the top flap window stating ‘now look at your stupid ass can’t even breath [sic],’
‘dumb muthafucker [sic],’ and laughing.” (Doc. 1, p. 7.) Additionally, he contends that he did
not receive any medical treatment during this time and that later Lieutenant Cloud told him that
there would be no medical evaluation. Id. Plaintiff alleges that he still suffers from lung
problems due to having inhaled the fire extinguisher fumes for a prolonged period.
When construed in Plaintiff’s favor, these allegations regarding events after the use of the
fire extinguisher arguably set forth a plausible claim that Defendant Williams disregarded
Plaintiff’s serious medical needs and exercised deliberate indifference to a substantial risk to his
health and safety. However, Plaintiff fails to set forth cognizable claims against Defendants
Mobley and Hill.
A.

Denial of Medical Care

The cruel and unusual punishment standard of the Eighth Amendment requires prison
officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care.”

10

Farmer, 511 U.S. at 832. Generally speaking, however, “prison conditions rise to the level of an
Eighth Amendment violation only when they involve the wanton and unnecessary infliction of
pain.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (quotations omitted). Thus,
not all deficiencies and inadequacies in prison conditions amount to a violation of a prisoner’s
constitutional rights. Rhodes v. Chapman, 452 U.S. 337, 349 (1981). The Constitution does not
mandate comfortable prisons. Id. Prison conditions violate the Eighth Amendment only when
the prisoner is deprived of “the minimal civilized measure of life’s necessities.” Id. at 347.
However, “[c]ontemporary standards of decency must be brought to bear in determining whether
a punishment is cruel and unusual.” Bass v. Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999).
In the medical care context, the standard for cruel and unusual punishment, embodied in
the principles expressed in Estelle v. Gamble, 429 U.S. 97, 104 (1976), is whether a prison
official exhibits a deliberate indifference to the serious medical needs of an inmate. Farmer, 511
U.S. at 828. However, “not every claim by a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment.” Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991) (quoting Estelle, 429 U.S. at 105). Rather, “an inmate must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994).
In order to prove a deliberate indifference to medical care claim, a prisoner must
overcome three obstacles. The prisoner must: 1) “satisfy the objective component by showing
that [he] had a serious medical need”; 2) “satisfy the subjective component by showing that the
prison official acted with deliberate indifference to [his] serious medical need”; and 3) “show
that the injury was caused by the defendant’s wrongful conduct.” Goebert v. Lee Cty., 510 F.3d
1312, 1326 (11th Cir. 2007). A medical need is serious if it “’has been diagnosed by a physician

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as mandating treatment or [is] one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.’” Id. (quoting Hill, 40 F.3d at 1187) (emphasis
supplied). As for the subjective component, the Eleventh Circuit has consistently required that
“a defendant know of and disregard an excessive risk to an inmate’s health and safety.” Haney
v. City of Cumming, 69 F.3d 1098, 1102 (11th Cir. 1995). Under the subjective prong, an
inmate “must prove three things: (1) subjective knowledge of a risk of serious harm; (2)
disregard of that risk; (3) by conduct that is more than [gross] negligence.” Goebert, 510 F.3d
at 1327.
Plaintiff sets forth sufficient facts that Defendant Williams knew of Plaintiff’s need for
medical treatment but disregarded that risk.

According to Plaintiff, Defendant Williams

constantly came to Plaintiff’s cell after the use of the fire extinguisher and acknowledged that
Plaintiff was having difficulty breathing. However, rather than obtaining medical treatment for
Plaintiff, Defendant Williams cursed at him and taunted him about his inability to breathe.
However, Plaintiff does not make any plausible claim that Defendant Mobley or
Defendant Hill was personally involved in the denial of his medical care or that either can be
otherwise connected to the denial of medical care. Plaintiff’s statement of claim does not allege
that Defendant Mobley was even present at Plaintiff’s cell during the use of the fire extinguisher
or thereafter. (Doc. 1, pp. 6–7.) While Unit Manager Chambers relayed information from
Defendant Mobley regarding Plaintiff and his roommate being fed, this discussion included
nothing about the use of the fire extinguisher or any other information that indicates that
Defendant Mobley was aware of Plaintiff’s need for medical treatment. (Id. at p. 7.) Likewise,
while Defendant Hill was present at the use of the fire extinguisher, Plaintiff does not allege that
he was even in the area after the incident, much less that he knew that Plaintiff was having

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difficulty breathing as a result of the incident. Id. Consequently, Plaintiff has not set forth any
facts to plausibly allege that Defendant Mobley or Hill knew of or disregarded any serious
medical need.
B.

Deliberate Indifference to Risk to Health and Safety

The Eighth Amendment requires prison officials to take reasonable measures to ensure
the safety of inmates. Farmer, 511 U.S. at 828. This right to safety is violated when prison
officials show a deliberate indifference to a substantial risk of serious harm. Carter v. Galloway,
352 F.3d 1346, 1349 (11th Cir. 2003) (citing Farmer, 511 U.S. at 828). As in the deliberate
indifference to medical care context, in order to prevail on such a claim, the plaintiff must
establish the following: (1) there was a substantial risk of serious harm to him; (2) defendant
showed a deliberate indifference to this risk; and (3) there is a causal connection between the
defendant’s acts or omissions and the alleged constitutional deprivation. Id.
“To be deliberately indifferent a prison official must know of and disregard ‘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.’” Id. (quoting Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313,
1319–20 (11th Cir. 2005)). Whether a substantial risk of serious harm exists so that the Eighth
Amendment might be violated involves a legal rule that takes form through its application to
facts. However, “simple negligence is not actionable under § 1983, and a plaintiff must allege a
conscious or callous indifference to a prisoner’s rights.” Smith v. Reg’l Dir. of Fla. Dep’t of
Corr., 368 F. App’x 9, 14 (11th Cir. 2010). In other words, “to find deliberate indifference on
the part of a prison official, a plaintiff inmate must show: (1) subjective knowledge of a risk of

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serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.”
Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010).
Plaintiff has alleged sufficient facts that Defendant Williams knew of and disregarded a
risk of serious harm to Plaintiff by keeping Plaintiff in his cell for hours after the use of the fire
extinguisher. See Santos v. New York City Dep’t of Corr., No. 08CIV8790GBDTHK, 2010 WL
1142066, at *4 (S.D.N.Y. Feb. 25, 2010), report and recommendation adopted, No.
08CV8790GBDTHK, 2010 WL 1142065 (S.D.N.Y. Mar. 25, 2010) (denying motion to dismiss
on claim that officer was deliberately indifferent to a serious risk of harm when she exposed
plaintiff to a high-pressure stream of chemicals from a fire extinguisher). Again, according to
Plaintiff, Defendant Williams was present for the use of the fire extinguisher and constantly
taunted Plaintiff and his roommate about their inability to breathe as they remained in the same
cell for hours.
In contrast, Plaintiff has not alleged that Defendant Mobley or Defendant Hill knew that
Plaintiff stayed in his cell after the incident much less that Plaintiff faced a serious threat to his
health and safety by doing so. Again, Plaintiff does not allege that Defendant Mobley was
present at his cell during the use of the fire extinguisher or afterwards. While Hill was present
for the use of the fire extinguisher, Plaintiff does not allege that this Defendant remained in the
area or that he otherwise knew that Plaintiff remained in his cell and had breathing problems.
Thus, Plaintiff cannot sustain a claim against Mobley or Hill for deliberate indifference to
Plaintiff’s health and safety. Farmer, 511 U.S. at 828 (in order to be liable under the Eighth
Amendment, a prison official must know that the inmate faces a substantial risk of serious harm
and then disregard that risk).

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CONCLUSION
For all of the above, I RECOMMEND that the Court DISMISS Plaintiff’s claims
against the Georgia Department of Corrections, Captain Mobley, and Officer Hill. Additionally,
the Court should DISMISS Plaintiff’s official capacity claims, supervisory liability claims, and
his claims for excessive use of force.
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
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.

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REMAINING CLAIMS AND DEFENDANT
Plaintiff’s allegations in his Complaint arguably state colorable claims that Defendant C.
Williams disregarded Plaintiff’s serious medical needs and disregarded a substantial risk to
Plaintiff’s health and safety under 42 U.S.C. § 1983 and the Eighth Amendment. Consequently,
the United States Marshal shall serve a copy of Plaintiff’s Complaint and a copy of this Order
upon Defendant Williams without prepayment of cost. The Court also provides the following
instructions to the parties that will apply to the remainder of this action and which the Court
urges the parties to read and follow.
INSTRUCTIONS TO DEFENDANT
Because Plaintiff is proceeding in forma pauperis, the undersigned directs that service be
effected by the United States Marshal. Fed. R. Civ. P. 4(c)(3). In most cases, the marshal will
first mail a copy of the complaint to the Defendant by first-class mail and request that the
Defendant waive formal service of summons. Fed. R. Civ. 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. Fed. R.
Civ. 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.
Fed. R. Civ. P. 4(d)(3).
IT IS FURTHER ORDERED that Defendant is hereby granted leave of court to take
the deposition of the Plaintiff upon oral examination. Fed. R. Civ. P. 30(a). Defendant is further
advised that the Court’s standard 140 day discovery period will commence upon the filing of the

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last answer. Local Rule 26.1. Defendant shall ensure that all discovery, including the Plaintiff’s
deposition and any other depositions in the case, is completed within that discovery period.
In the event that Defendant takes the deposition of any other person, Defendant is ordered
to comply with the requirements of Federal Rule of Civil Procedure 30. As the Plaintiff will
likely not be in attendance for such a deposition, Defendant shall notify Plaintiff of the
deposition and advise him that he may serve on Defendant, in a sealed envelope, within ten (10)
days of the notice of deposition, written questions the Plaintiff wishes to propound to the
witness, if any. Defendant shall present such questions to the witness seriatim during the
deposition. Fed. R. Civ. P. 30(c).
INSTRUCTIONS TO PLAINTIFF
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendant or, if
appearance has been entered by counsel, upon his attorney, 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 Defendant or his counsel. Fed. R. Civ. P. 5. “Every
pleading shall contain a caption setting forth the name of the court, the title of the action, [and]
the file number.” Fed. R. Civ. P. 10(a).
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.
Plaintiff’s failure to notify the Court of a change in his address 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 Defendant, Plaintiff must initiate discovery.

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See generally, Fed. R. Civ. P. 26, et seq. The discovery period in this case will expire 140 days
after the filing of the last answer. Local Rule 26.1. Plaintiff does not need the permission of the
Court to begin discovery, and Plaintiff should begin discovery promptly and complete it within
this time period. Local Rule 26.1. Discovery materials should not be filed routinely with the
Clerk of Court; exceptions include: when the Court directs filing; when a party needs such
materials in connection with a motion or response, and then only to the extent necessary; and
when needed for use at trial. Local Rule 26.4.
Interrogatories are a practical method of discovery for incarcerated persons. See Fed. R.
Civ. 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
organizations who are not named as a Defendant. Interrogatories are not to contain more than
twenty-five (25) questions. Fed. R. Civ. 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 Defendant 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. Fed. R.
Civ. 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 cents ($.50) per page. If Plaintiff seeks copies, he should request them directly
from the Clerk of Court and is advised that the Court will authorize and require the

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collection of fees from his prison trust fund account to pay the cost of the copies at the
aforementioned rate of fifty cents ($.50) per page.
If Plaintiff does not press his case forward, the court may dismiss it for want of
prosecution. Fed. R. Civ. P. 41; Local Rule 41.1.
It is Plaintiff’s duty to cooperate fully in any discovery which may be initiated by
Defendant. 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
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
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 Plaintiff fails to
respond to a motion to dismiss, the Court will assume that he does not oppose the Defendant’s

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motion. Plaintiff’s case may be dismissed for lack of prosecution if Plaintiff fails to respond to a
motion to dismiss.
Plaintiff’s response to a motion for summary judgment must be filed within twentyone (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 Defendant file a motion for

summary judgment, Plaintiff is advised that he 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 Defendant’s
motion for summary judgment be supported by affidavit, Plaintiff must file counter-affidavits if
he desires to contest the Defendant’s statement of the facts. Should Plaintiff fail to file opposing
affidavits setting forth specific facts showing that there is a genuine dispute for trial, any factual
assertions made in Defendant’s affidavits will be accepted as true and summary judgment may
be entered against the Plaintiff pursuant to Federal Rule of Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of January,
2016.

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

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