Brumfield v. Toole et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court should DISMISS Plaintiff's 1 Complaint pursuant to 28 U.S.C. § 1915A. It is also RECOMMENDED that the Court DISMISS Plaintiff's official capacity, supervisory liab ility, and Eighth amendment claims. Therefore, the Court should DISMISS all claims against Defendants Toole and Chambers. It is further RECOMMENDED that the Court DENY Plaintiff's request for injunctive relief. Any party seeking to object to thi s 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 4/26/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/12/2016. (csr)

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

KEVIN DARNELL BRUMFIELD,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-1

v.
ROBERT TOOLE; TRAVONZA BOBBIT;
MILTON SMITH; BRIAN CHAMBERS; and
MCCRAY MARYIN,
Defendants.

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 Court has conducted the requisite frivolity review of Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1915A. For the reasons that follow, I RECOMMEND that the Court
DISMISS Plaintiff’s official capacity, supervisory liability, and Eighth Amendment claims. I
further RECOMMEND that the Court DENY Plaintiff’s request for injunctive relief.
However, Plaintiff has stated viable claims against Defendants Bobbit and Smith under
the First Amendment and those claims shall proceed. Consequently, the Court hereby ORDERS
that the Complaint and this Order be served on Defendants Bobbit and Smith. The Court
provides additional instructions to Plaintiff and Defendants pertaining to the future litigation of
this action, which the parties are urged to read and follow.

BACKGROUND 1
Plaintiff asserts he was attacked and stabbed by inmates who had escaped from their cells
on November 14, 2014, while working as an orderly in the G-3 building at Georgia State Prison.
(Doc. 1, p. 5.) Plaintiff contends that the inmates were able to access the area where he was
working because Defendants failed to properly lock the inmates’ cells or secure the area
surrounding the cells. Plaintiff contends he then received inadequate medical treatment for his
stab wounds. (Id. at p. 6.) Plaintiff asserts only “two (2) of [his] wounds [were] attended to” and
that he “needed stitches but only received some medical glue.” (Id. at p. 5.) Plaintiff alleges that
he was then unjustly punished for his “unauthorized” presence in the G-3 area of building G, as
Plaintiff was assigned to work in only the G-2 area. 2 (Id.) As a result, Plaintiff was placed in the
tier program, which limited the amount of time allowed outside his cell. (Id.)
Plaintiff then filed a grievance regarding the attack and avers that Defendants Bobbit and
Smith retaliated against him for filing that grievance by taking his personal property and moving
him to the Tier II administrative segregation unit. (Id.) Plaintiff filed an additional grievance
regarding Defendants Bobbit’s and Smith’s retaliatory actions, for which Plaintiff alleges he
suffered further retaliation. (Id. at p. 6.)
Plaintiff contends that, as a result of the attack and Defendants’ continued failure to
secure inmates’ cells, he suffers from Post-Traumatic Stress Disorder and lives in constant fear
of a future attack. (Id.) Plaintiff requests $800,000 in compensatory damages for his physical
and emotional damages. (Id. at p. 7.) He also requests that the Court grant him injunctive relief

1

The below recited facts are taken from Plaintiff’s Complaint, (doc. 1), and are accepted as true, as they
must be at this stage.

2

Plaintiff alleges that he was given permission to enter the G-3 area by Office Chris Kavel, he had a
signed pass authorizing his presence in the area, and his presence was recorded in a log book. (Doc. 1,
p. 5.)

2

and order that he be transferred to a safer facility where he can receive mental health treatment.
(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.

Dismissal of Claims for Monetary Damages Against Defendants in Their Official
Capacities
It is not clear if Plaintiff intends to sue Defendants in their individual and official

capacities.

However, Plaintiff cannot sustain a Section 1983 claim 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 officers at a state penal institution. Accordingly, the Eleventh Amendment
immunizes these actors from suit for monetary damages 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 for monetary damages against Defendants in their
official capacities. Therefore, his Section 1983 claims for monetary relief against Defendants in
their official capacities should be DISMISSED.
II.

Supervisory Liability Claims against Defendants Toole and Chambers
Section 1983 liability must be based on something more than a defendant’s supervisory

position or a theory of respondeat superior. Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir.
2009); Braddy v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th Cir. 1998). A
supervisor may be liable only through personal participation in the alleged constitutional

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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 wishes to hold Defendants Toole and Chambers liable based solely on
their supervisory positions at the prison. He does not make any factual allegations that these
individuals directly participated in or were otherwise causally connected to the alleged
deprivations of his constitutional rights. For example, he states that Defendant Toole has a duty
to “oversee the entire prison and make sure everything is running” properly. (Doc. 1, p. 6.) He
states that Defendant Chambers has a duty to “make sure the officers are doing what they are
suppose[d] to be doing.”

(Id.)

As set forth above, such supervisory allegations are an

insufficient basis for Section 1983 liability. Therefore, the Court should DISMISS all claims
against Defendants Toole and Chambers.
III.

Eighth Amendment Claims
A.

Assignment to Administrative Confinement

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.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994). Generally speaking, however, “prison conditions
rise to the level of an Eighth Amendment violation only when they involve the wanton and

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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.
Even accepting Plaintiff’s assertions that he was arbitrarily placed in administrative
confinement because he had permission to be in the G-3 area and presented Defendants with
documents confirming his authorized presence, he fails to plausibly state an Eighth Amendment
claim. The conditions imposed in “administrative segregation and solitary confinement do not,
in and of themselves, constitute cruel and unusual punishment.” Sheley v. Dugger, 833 F.2d
1420, 1428–29 (11th Cir. 1987); see also, Gholston v. Humphrey, No. 5:12–CV–97–MTT–MSH,
2014 WL 4976248, at *3 (M.D. Ga. Oct. 3, 2014) (dismissing prisoner’s claims that his transfer
to SMU with more restrictive conditions without a “legitimate penological justification” amounts
to an Eighth Amendment violation); Anthony v. Brown, No. CV 113–058, 2013 WL 3778360, at
*2 (S.D. Ga. July 17, 2013) (dismissing on frivolity review Eighth Amendment claims based on
conditions of confinement in crisis stabilization unit). As detailed above, an Eighth Amendment
violation requires the prisoner to allege that he is deprived of “the minimal civilized measure of
life’s necessities.”

Rhodes, 452 U.S. at 349.

Plaintiff does not plausibly allege that the

conditions of his confinement in administrative segregation fall below this standard. .
Accordingly, the Court should DISMISS Plaintiff’s Eighth Amendment claims based upon his
placement in administrative confinement.

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B.

Deliberate Indifference Claim Based on Failure to Protect

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 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
Cty., 400 F.3d 1313, 1319 (11th Cir. 2005)). “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, 368 F. App’x at 14. 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).
Like any deliberate indifference claim, a plaintiff must satisfy both an objective and a
subjective inquiry. Chandler v. Crosby, 379 F.3d 1278, 1289–90 (11th Cir. 2004). Under the
objective component, a plaintiff must prove the condition he complains of is sufficiently serious
to violate the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 8 (1992). As for the
subjective component, “the prisoner must prove that the prison official acted with ‘deliberate

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indifference.’” Miller v. King, 384 F.3d 1248, 1260–61 (11th Cir. 2004) (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)). To prove deliberate indifference, the prisoner must show
that prison officials “‘acted with a sufficiently culpable state of mind’” with regard to the serious
prison condition at issue. Id. (quoting Chandler, 379 F.3d at 1289–90).
Prison officials are not held liable for every attack by one inmate upon another, Zatler v.
Wainwright, 802 F.2d 397, 400 (11th Cir. 1986), nor are they guarantors of a prisoner’s safety.
Popham v. City of Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990). Rather, a prison official
must be faced with a known risk of injury that rises to the level of a “strong likelihood rather
than a mere possibility” before his failure to protect an inmate can be said to constitute deliberate
indifference. Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990).
Plaintiff has not made any allegation that the inmates that attacked him posed any risk to
Plaintiff’s safety prior to the November 28, 2014 incident or that Defendants were aware of any
risk to Plaintiff’s safety—from these inmates or any other source—prior to the attack. A review
of Plaintiff’s Complaint fails to reveal any allegation indicating that Defendants were
subjectively aware of any objective risk to Plaintiff’s safety prior to the attack.
Plaintiff alleges that he was attacked by other inmates on November 28, 2014, because
Defendants failed to lock the doors leading to the dormitory area in which he worked and failed
to secure inmates in their cells. (Doc. 1, pp. 5–6.) Plaintiff further alleges that, since his attack,
Defendants have made no effort to properly secure the doors or keep inmates confined. (Id. at
p. 6.) Plaintiff asserts throughout his Complaint that Defendants were, and continue to be,
“negligent” in properly securing the area. (Id.) He contends that Defendants have not repaired
the doors’ faulty locking mechanisms since his attack and that, as a result, he now lives in
constant fear of a future attack. (Id.)

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These allegations of negligence fail to rise to the level of an Eighth Amendment
violation.

It is obduracy and wantonness, not inadvertence or error in good faith, that

characterize the conduct prohibited by the Cruel and Unusual Punishment[ ] Clause.” McCoy v.
Webster, 47 F.3d 404, 408 (11th Cir. 1995). Thus, to constitute cruel and unusual punishment,
“conduct that does not purport to be punishment . . . must involve more than ordinary lack of due
care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). In
other words, “[m]erely negligent failure to protect an inmate from attack does not justify liability
under [42 U.S.C.] § 1983.” Stuckey v. Thompson, No. CV405-216, 2007 WL 1035134, at *5
(S.D. Ga. Mar. 29, 2007) (citing Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990)).
Plaintiff has not presented facts sufficient to show that Defendants acted with more than gross
negligence by failing to keep doors locked. See Patton v. Corr. Officer Rowell, No. 5:15-cv-25,
2015 WL 9916161, at *5 (S.D. Ga. Dec. 16, 2015) (“[W]hile Defendants’ violations of standard
operating procedures and failure to check to be certain that all cells were locked may constitute
negligence, they do not support deliberate indifference claims under the Eighth Amendment.”)
(emphasis added). 3
Consequently, the Court should DISMISS Plaintiff's Eight Amendment claims based on
a theory of a failure to protect.
C.

Deliberate Indifference Claim Based on Inadequate Medical Care

As stated above, the Eighth Amendment’s proscription against cruel and unusual
punishment imposes a constitutional duty upon a prison official to take reasonable measures to
guarantee the safety of inmates. The cruel and unusual punishment standard of the Eighth

3

Cf. Marsh v. Butler Cty., 268 F.3d 1014 (11th Cir. 2001) (en banc), abrogated on other grounds by Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

10

Amendment requires prison officials to “ensure that inmates receive adequate food, clothing,
shelter, and medical care.” Farmer, 511 U.S. at 832.
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 claim, a detainee must overcome three
obstacles. The detainee 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 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.

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“The meaning of ‘more than gross negligence’ is not self-evident[.]” Id. In instances
where a deliberate indifference claim turns on a delay in treatment rather than the type of
medical care received, the factors considered are: “(1) the seriousness of the medical need; (2)
whether the delay worsened the medical condition; and (3) the reason for the delay.” Id. “When
the claim turns on the quality of the treatment provided, there is no constitutional violation as
long as the medical care provided to the inmate is ‘minimally adequate.’” Blanchard v. White
Cty. Det. Ctr. Staff, 262 F. App’x 959, 964 (11th Cir. 2008) (quoting Harris, 941 F.2d at 1504).
“Deliberate indifference is not established where an inmate received care but desired different
modes of treatment.” Id.
Plaintiff does not allege that Defendants disregarded his medical needs. Rather, he
disagrees with the mode and extent of treatment he received. Plaintiff states that he “did not
receive the proper treatment” because he needed stitches, but was only given medical glue. He
also contends that he should have received more extensive treatment because “only two (2) of his
wounds [were] attended to.” (Doc. 1, p. 5.) However, this amounts to, at most, an allegation of
negligence, not deliberate indifference. Thus, Plaintiff has not alleged sufficient facts to state a
cognizable Eighth Amendment claim for denial of medical care, and the Court should DISMISS
those claims.
IV.

Retaliation
“It is an established principle of constitutional law that an inmate is considered to be

exercising his First Amendment right of freedom of speech when he complains to the prison’s
administrators about the conditions of his confinement.” O’Bryant v. Finch, 637 F.3d 1207,
1212 (11th Cir. 2011). It is also established that an inmate may maintain a cause of action
against prison administrators who retaliate against him for making such complaints. Id. (quoting

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Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008) (internal citation and punctuation
omitted)). “To establish a First Amendment retaliation claim, a prisoner need not allege the
violation of an additional separate and distinct constitutional right; instead, the core of the claim
is that the prisoner is being retaliated against for exercising his right to free speech.” O’Bryant,
637 F.3d at 1212. “To prevail, the inmate must establish these elements: (1) his speech was
constitutionally protected; (2) the inmate suffered adverse action such that the administrator’s
allegedly retaliatory conduct would likely deter a person of ordinary firmness from engaging in
such speech; and (3) there is a causal relationship between the retaliatory action and the
protected speech.” Smith, 532 F.3d at 1276 (citing Bennett v. Hendrix, 423 F.3d 1247, 1250,
1254 (11th Cir. 2005)).
Here, Plaintiff’s filing of grievances regarding his attack is constitutionally protected
speech. Additionally, Plaintiff arguably asserts that a prisoner of “ordinary firmness” may have
been deterred from exercising his First Amendment rights based on Defendants Bobbit and
Smith’s actions. Bennett, 423 F.3d at 1252 (noting “adverse effect” depends on the context of
the alleged action and focuses on “the status of the speaker, the status of the retaliator, the
relationship between the speaker and the retaliator, and the nature of the retaliatory acts[ ]”)
(citing Thaddeus–X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999)). Plaintiff alleges that he was
placed in Tier II administrative confinement and that Defendants Bobbit and Smith confiscated
his personal property as a result of his decision to file a grievance. (Doc. 1, p. 5.) Thus, Plaintiff
has stated facts which plausibly allege First Amendment retaliation claims against Defendants
Bobbit and Smith, and those claims remain pending.

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V.

Plaintiff’s Request for Preliminary Injunctive Relief
Plaintiff has sought preliminary injunctive relief from the Court in the form of a transfer

to another prison. (Doc. 1, p. 13.) To be entitled to a preliminary injunction or a temporary
restraining order, 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 nonmovant; 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).
If a plaintiff succeeds in making such a showing, then “the court may grant injunctive
relief, but the relief must be no broader than necessary to remedy the constitutional violation.”
Newman v. Ala., 683 F.2d 1312, 1319 (11th Cir. 1982).

Accordingly, where there is a

constitutional violation in the prison context, 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) (“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, 683 F.2d at 1320–21 (reversing district
court’s injunction requiring release of prisoners on probation because it “involved the court in

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the operation of the State’s system of criminal justice to a greater extent than necessary” and less
intrusive equitable remedy was available).
Plaintiff has not shown that he has satisfied the prerequisites in order to be entitled to a
preliminary injunction. Specifically, Plaintiff has not shown the likelihood of success on the
merits of his claims. This is not to say that Plaintiff will not be able to ultimately obtain some
form of injunctive relief in this case. However, he has not made the requisite showing at this
time to obtain the extraordinary relief he currently seeks. Therefore, the Court should DENY his
request for a preliminary injunction.
CONCLUSION
For the reasons laid out above, I RECOMMEND that the Court DISMISS Plaintiff’s
official capacity, supervisory liability, and Eighth Amendment claims. I also RECOMMEND
that the Court DISMISS Plaintiff’s claims against Defendants Toole, Chambers, and Maryin and
DENY Plaintiff’s requests for preliminary injunctive relief.
Any party 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. 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.

Furthermore, it is not necessary for a party to repeat legal

arguments in objections.

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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 to which
objection are 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 Plaintiff.
REMAINING CLAIMS AND DEFENDANTS
Plaintiff’s allegations, when read in a light most favorable to him, arguably state
colorable claims for relief against Defendants Smith and Bobbitt for violations of his First
Amendment rights. Consequently, a copy of this Order and Plaintiff’s Complaint shall be served
upon Defendants Smith and Bobbit by the United States Marshal without prepayment of costs.
The Court also provides the following instructions to the parties regarding the remaining claims
and Defendants 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

16

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 their 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.
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, 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

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organizations who are not named as Defendants. 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
responses to questions will not be tolerated and may subject Plaintiff to severe sanctions,
including dismissal of this case.

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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’
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

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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 12th day of April,
2016.

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

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