Porter v. Shumake et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's claims against Defendants in their official capacities re: 1 Complaint filed by Rontravious Porter. Any party seeking to object to this Report and Recomm endation 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 1/27/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/13/2016. (csr)

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

RONTRAVIOUS PORTER,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-113

v.
SGT. RONNIE SHUMAKE; CO II
DOTTSON; CO II SAPP; and CO II
CAMBPELL,
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.)
For the reasons set forth below, Plaintiff’s claims regarding excessive force, failure to intervene,
and deliberate indifference to health and safety should proceed. However, I RECOMMEND
that the Court DISMISS Plaintiff’s claims against Defendants in their official capacities. The
Court DIRECTS the United States Marshal to serve Defendants with a copy of Plaintiff’s
Complaint, (doc. 1), and this Order.
BACKGROUND
On October 28, 2013, Defendants Sergeant Ronnie Shumake, Correctional Officer Sapp,
Correctional Officer Dottson, and Correctional Officer Campbell approached Plaintiff’s cell.
(Doc. 1, p. 5.) Defendant Shumake gave Plaintiff orders while Defendants Sapp, Dottson, and
Campbell stood at the door. Id. Defendant Dottson and Campbell both had cameras to record an
“extraction” of Plaintiff from his cell. Id. Plaintiff complied with all of Defendant Shumake’s

orders and stripped naked, bent over, and spread his buttocks. Id. Then, as Plaintiff stood back
up, Defendants Dottson and Campbell pointed their cameras to the ground. (Id.at pp. 5–6.)
Defendant Shumake then sprayed Plaintiff with pepper spray though the cell door. (Id. at p. 6.)
Shumake sprayed Plaintiff’s face, groin area, and buttocks without any provocation. Id. Plaintiff
had complied with all of the officers’ commands before being sprayed with the pepper spray. Id.
The officers then left Plaintiff in the cell filled with pepper spray for eight minutes, causing
Plaintiff to hyperventilate and causing burning in Plaintiff’s lungs and chest. Id. Plaintiff’s skin
burned for at least twenty-four hours. 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] . . .

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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
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
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have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).
DISCUSSION
I.

Claims Against Defendants in Their Official Capacities
Plaintiff cannot sustain his Section 1983 claims for monetary damages 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 officer in his official capacity is “no different from a suit
against the [s]tate itself,” such a defendant is 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 Defendants in their
official capacities as employees of the Georgia 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). Consequently, the Court should DISMISS
Plaintiff’s claims against Defendants in their official capacities.
II.

Excessive Force Claims Against Defendant Shumake
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 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,

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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 has made sufficient allegations to state a plausible claim that Defendant
Shumake used excessive force against him on the date of the incident. He alleges that Defendant
Shumake sprayed him with pepper spray without any provocation or other reason. These claims
survive frivolity review.
III.

Failure to Intervene Claims Against Defendants
“[A]n officer can be liable for failing to intervene when another officer uses excessive

force.” Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000) (“[I]f a police
officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation
such as an unprovoked beating takes place in his presence, the officer is directly liable[.]”
(alterations in original) (citing Ensley v. Soper, 142 F.3d 1402, 1407–08 (11th Cir. 1998))).
“This liability, however, only arises when the officer is in a position to intervene and fails to do
so.” Id.; see also Keating v. City of Miami, 598 F.3d 753, 764 (11th Cir. 2010) (explaining that a
direct failure to intervene claim “requir[es] the allegations to include facts showing the necessity

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or real opportunity for the defendant-officers to intervene in a fellow officer’s unlawful
conduct”). However, if there is no underlying use of excessive force, another officer has no
obligation to intervene. Crenshaw v. Lister, 556 F.3d 1283, 1294 (11th Cir. 2009).
Plaintiff has stated cognizable failure to intervene claims against Defendants Sapp,
Dottson, and Campbell.

He alleged that these Defendants were present during Defendant

Shumake’s use of force but did nothing to protect Plaintiff and even turned their cameras away
from the incident. Consequently, these claims shall procced.
IV.

Deliberate Indifference 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). 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, 400 F.3d at 1319–20). 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.

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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 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 Defendants knew of and disregarded a risk of
serious harm to Plaintiff by keeping Plaintiff in his cell for an extended period after the use of the
pepper spray. 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). Accordingly, these
claims shall also survive frivolity review.
CONCLUSION
For the numerous reasons set forth above, I RECOMMEND that the Court DISMISS
Plaintiff’s claims against Defendants in their official capacities.
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.

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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.

REMAINING CLAIMS AND DEFENDANTS
As stated above, Plaintiff’s allegations in his Complaint arguably state colorable claims
against Defendants under 42 U.S.C. § 1983 and the Eighth Amendment. Consequently, a copy
of Plaintiff’s Complaint and a copy of this Order shall be served upon Defendants by the United
States Marshal 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 DEFENDANTS
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

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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 Defendants are hereby granted leave of court to take
the deposition of the Plaintiff upon oral examination. Fed. R. Civ. P. 30(a). Defendants are
further advised that the Court’s standard 140 day discovery period will commence upon the
filing of the last answer. Local Rule 26.1. Defendants 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 Defendants take the deposition of any other person, Defendants are
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, 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 to propound to the
witness, if any. Defendants shall present such questions to the witness seriatim during the
deposition. Fed. R. Civ. P. 30(c).

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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 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 Defendants, Plaintiff must initiate discovery.
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

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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 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. 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 ($.50) per page. If Plaintiff seeks copies, he should request them directly
from the Clerk of Court and is advised that the Court will authorize and require the
collection of fees from his prison trust fund account to pay the cost of the copies at the
aforementioned rate of fifty cents ($.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
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

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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 Defendants’
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 Defendants 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 Defendants’

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motion for summary judgment be supported by affidavit, Plaintiff must file counter-affidavits if
he desires to contest the Defendants’ 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 Defendants’ 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 13th day of January,
2016.

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

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