Timmons v. Bryson et al

Filing 8

ORDER DIRECTING the United States Marshal to serve Defendants Sellers, Shoemaker, McIntosh and the Booth Control Officer with a copy of Plaintiff's Complaint and this Order. The Clerk of Court is DIRECTED to add "Booth Control Officer" ; as a named Defendant upon the docket and record of this case. In addition, Plaintiff is DIRECTED to advise the Court of the identity of the Booth Control Officer within thirty (30) days of this Order. Signed by Magistrate Judge R. Stan Baker on 3/29/2016. (csr)

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

TIMOTHY TIMMONS,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-19

v.
HOMER BRYSON; WARDEN TATTUM;
TOBBY, Deputy Warden of Security;
BRANDON SELLERS; OFFICER
SHOEMAKER; OFFICER REID; OFFICER
SANDERS; CAPTAIN ANDERSON;
OFFICER MCINTOSH; MEDICAL
ADMINISTRATOR; MEDICAL
PHYSICIAN; and ALL OF ROGERS STATE
PRISON CORRECTIONAL FACILITY,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Smith State Prison in Glennville, Georgia, filed this
cause of action pursuant to 42 U.S.C. § 1983 to contest certain conditions of his confinement
while he was housed at Rogers State Prison in Reidsville, Georgia. For the reasons which
follow, I RECOMMEND that the Court DISMISS Plaintiff’s monetary damages claims against
Defendants in their official capacities and Plaintiff’s claims against Defendants Bryson, Tattum,
Tobby, Sanders, Anderson, Medical Administrator, Medical Physician, and all of Rogers State
Prison Correctional Facility. I also RECOMMEND that the Court DISMISS Plaintiff’s claims
against Defendant Reid without prejudice. The Court DIRECTS the United States Marshal to

serve Defendants Sellers, Shoemaker, McIntosh, and the Booth Control Officer 1 with a copy of
Plaintiff’s Complaint and this Order.
BACKGROUND
Plaintiff, who is currently incarcerated at Smith State Prison, filed this cause of action
contesting certain conditions of his confinement at Rogers State Prison. Specifically, Plaintiff
states Defendant Shoemaker approached him on April 24, 2015, and asked Plaintiff what he had
in his possession. (Doc. 1, p. 7.) Plaintiff states he tried to explain to Defendant Shoemaker he
did not have anything on him, but, as Defendant Shoemaker starting coming closer to him,
Plaintiff emptied his pockets to reveal a pen, lip balm, and a compact disc. Plaintiff contends
Defendant Shoemaker began twisting his left arm “in an aggressive manner”, pushed Plaintiff
head first into a brick wall, and attempted to throw Plaintiff face first into the concrete floor.
(Id.) Plaintiff asserts Defendant Sellers arrived and immediately began assisting in Defendant
Shoemaker’s assault. According to Plaintiff, he was not resisting the officers in any way.
Plaintiff alleges Defendant Shoemaker cuffed his left wrist and pushed Plaintiff back into the
brick wall, causing head injuries. Plaintiff also alleges Defendant Sellers started striking him
several times in the face, head, and neck with his handcuffs. (Id. at p. 8.) In an effort to protect
himself from these blows, Plaintiff asserts he snatched his right hand away but was unsuccessful
because Defendant Shoemaker overpowered him and cuffed his right wrist. Plaintiff avers
Defendant Shoemaker threw punches and elbowed him in his back and on his side. Plaintiff
maintains he dropped to his knees, and Defendants Shoemaker and Sellers kicked, kneed, and
stomped him repeatedly in his back, side, hips, legs, and kidney area. (Id.) Plaintiff asserts the

1

The Clerk of Court is DIRECTED to add “Booth Control Officer” as a named Defendant upon the
docket and record of this case. In addition, Plaintiff is DIRECTED to advise the Court of the identity of
the Booth Control Officer within thirty (30) days of this Order. Plaintiff’s failure to do so may result in
the dismissal of Plaintiff’s claims against this Defendant.

2

Booth Control Officer who was working with Defendant Sellers, whose name he does not know,
witnessed this assault, as did several other inmates. (Id.)
Later that evening, Plaintiff contends he had cuts, bruises, and knots on his face and head,
scrapes on his knees, and swelling in his back, left leg, and left foot and began experiencing a lot
of pain. (Id. at p. 9.) Plaintiff also contends he received x-rays and a scan after he was
transferred to Smith State Prison, and these tests revealed he had herniated discs, which caused
pinched nerves, numbness in his limbs, and severe headaches. (Id. at p. 12.) Plaintiff asserts he
was seen in the medical department at Rogers State Prison on or about May 2, 2015, and the
physician told him he was only experiencing muscle spasms. Plaintiff contends he was given
“basic pain relievers and muscle relaxers” after he complained about pain shooting up and down
his legs and back. 2 (Id. at p. 10.)
On May 1, 2015, Plaintiff contends he and another inmate were taken before Defendant
McIntosh for a hearing based on disciplinary charges they received as a result of the April 24,
2015, incident. Plaintiff asserts he asked that the hearing not proceed without witnesses being
present or being able to read witness statements. Plaintiff alleges Defendant McIntosh informed
him that there would be no witnesses or evidence presented. Plaintiff was found guilty of the
charged violations, and he received 90 days’ store, visitation, and phone restriction. (Id.)
Plaintiff asserts he wrote a grievance to Defendant Tattum on May 5, 2015, and informed
him of the mistreatment he received at the hands of staff. (Id. at p. 11.) Plaintiff also asserts he
was taken to the Tattnall County Jail the next day to be fingerprinted because he was charged
with assaulting Defendant Sellers. Upon leaving the Jail, Plaintiff contends he tried to enter the
transport van while he was in chains by stepping on a milk crate, which cracked and slipped from
2

Plaintiff contends he was denied medical care from April 24 through May 1, 2015, yet he does not
indicate any person who may be responsible for this denial. (Doc. 1, p. 10.)

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under Plaintiff, causing Plaintiff to fall and the exacerbation of his previous injuries. (Id.)
Plaintiff states he was crying and asked his transporters for some type of medical assistance, but
Defendant Reid told him he was not going to call anyone. Plaintiff also states he begged and
pleaded with Defendant Reid, who still refused to do anything and forced Plaintiff into the van.
(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

4

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
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as

5

to excuse mistakes by those who proceed without counsel.”). The requisite review of Plaintiff’s
Complaint raises several doctrines of law, which the Court discusses in turn.
DISCUSSION
I.

Claims for Monetary Damages Against Defendants in Their Official Capacities
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 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). Absent a waiver of that immunity, Plaintiff cannot sustain
any constitutional claims against Defendants in their official capacities for monetary relief. The
Court should DISMISS these claims.
II.

Claims Against Defendants Bryson, Tattum, Tobby, and Medical Administrator
Section 1983 liability must be based on something more than a defendant’s supervisory

position or a theory of respondeat superior. 3 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
3

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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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: Defendant Bryson liable based solely on his position
as the Commissioner of the Georgia Department of Corrections; Defendant Tattum liable based
solely on his position as the Warden at Rogers State Prison; Defendant Tobby liable based solely
on his position as the Deputy Warden of Care and Treatment; and Medical Administrator liable
based solely on his position as the Medical Administrator. Plaintiff does not allege that Bryson,
Tattum, Tobby, or Medical Administrator personally participated in the alleged constitutional
violations. In fact, the only assertions Plaintiff makes against any of these Defendants is that he
wrote Defendant Tattum a grievance eleven days after he allegedly was assaulted and four days
after his disciplinary proceedings. This is an insufficient basis for liability under Section 1983.
Allen v. Brown, No. CV 112-052, 2013 WL 1333175, at * 5 n.9 (S.D. Ga. Mar. 7, 2013) (noting
that, even assuming a prisoner-plaintiff alleged the filing of a grievance with supervisory
officials put the officials on notice of alleged constitutional violations, he still could not proceed
against the supervisors on this basis because plaintiff did not state the supervisors personally
participated in the violations or that there was a causal connection between the alleged violations
and the supervisors’ actions) (citing Asad v. Crosby, 158 F. App’x 166, 170–72 (11th Cir. 2005),

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and Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). Thus, the Court should DISMISS
Plaintiff’s claims against Defendants Bryson, Tattum, Tobby, and Medical Administrator.
III.

Claims Against Anderson and Sanders
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). Second, a plaintiff must allege that the act
or omission was committed by “a person acting under color of state law.” Id. In addition, “[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. 8(a).
Though Plaintiff names Anderson and Sanders as Defendants in this case, he makes no
mention of or factual allegations against these Defendants. Thus, Plaintiff has not met the basic
pleading requirements as to Defendants Anderson and Sanders. Consequently, the Court should
DISMISS Anderson and Sanders as named Defendants in this case.
IV.

Claims Against All of Rogers State Prison Correctional Facility
As stated above, 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). Second, a plaintiff must allege that the act
or omission was committed by “a person acting under color of state law.” Id. While local
governments qualify as “persons” under Section 1983, state agencies and penal institutions are
generally not considered legal entities subject to suit. See Grech v. Clayton Cty. Ga., 335 F.3d
1326, 1343 (11th Cir. 2003).

Consequently, a prison is not a viable defendant under

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Section 1983.

Williams v. Chatham Cty. Sherriff’s Complex, Case No. 4:07-cv-68, 2007

WL 2345243 (S.D. Ga. Aug. 14, 2007) (“The county jail, however, has no independent legal
identity and therefore is not an entity that is subject to suit under Section 1983.”). Accordingly,
the Court should DISMISS Plaintiff’s claims against Defendant All of Rogers State Prison
Correctional Facility.
V.

Deliberate Indifference Claims against Defendant Medical Physician
The Eighth Amendment requires prison officials to take reasonable measures to ensure

the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 828 (1994). 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 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

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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). “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 v. Thigpen, 941 F.2d 1495, 1504 (11th Cir.
1991)). “Deliberate indifference is not established where an inmate received care but desired
different modes of treatment.” Id.
Plaintiff fails to allege sufficient facts to state a claim that Defendant Medical Physician
disregarded a medical need with conduct which is more than gross negligence. The most
Plaintiff states is that Defendant Medical Physician examined him, only thought Plaintiff was
suffering from muscle spasms (despite what later tests revealed), and gave him basic
medications. In addition, Plaintiff states he was in pain and later learned that he had herniated
discs; however, Plaintiff admits he was given medical treatment and pain medication while he
was at Rogers State Prison.
The Supreme Court has emphasized that mere negligence in providing medical treatment
or a difference of medical opinion does not give rise to an Eighth Amendment claim, and
medical malpractice does not become a constitutional violation simply because the victim is
incarcerated. Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Kelley v. Hicks, 400 F.3d
1282, 1285 (11th Cir. 2005) (“Mere negligence, however, is insufficient to establish deliberate
indifference.”); Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (negligence in
misdiagnosis of pituitary tumor not sufficient for Eighth Amendment claim); Moore v. McNeil,
No. 09-22754-CIV, 2009 WL 7376782, at *5 (S.D. Fla. Dec. 7, 2009), report and

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recommendation adopted in part, No. 09-22754-CIV, 2011 WL 304313 (S.D. Fla. Jan. 28, 2011)
(“Treatment violates the Eighth Amendment only if it involves something more than a medical
judgment call, an accident, or an inadvertent failure.

It must be so grossly incompetent,

inadequate, or excessive as to shock the conscience or to be intolerable to fundamental
fairness.”) (internal punctuation omitted) (quoting Murrell v. Bennett, 615 F.2d 306, 310 n.4 (5th
Cir. 1980), and Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)). The purpose of the
subjective requirement of the deliberate indifference test is “to prevent the constitutionalization
of medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show more
than negligence or the misdiagnosis of an ailment.” Rouster v. Cty. of Saginaw, 749 F.3d 437,
446–47 (6th Cir. 2014) (emphasis supplied) (quoting Comstock v. McCrary, 273 F.3d 693, 703
(6th Cir. 2001)); Payne v. Groh, No. CIV. 1:99CV83, 1999 WL 33320439, at *5 (W.D.N.C. July
16, 1999) (“An allegation of misdiagnosis, even when accompanied by a speculative allegation
of subjective intent, amounts only to the state-law tort of medical malpractice, not to a tort of
constitutional magnitude for which Section 1983 is reserved.”).
Plaintiff’s allegations, even when accepted as true and construed in his favor, simply do
not rise to the level of a constitutional violation. Consequently, the Court should DISMISS all
of Plaintiff’s deliberate indifference claims against Defendant Medical Physician.
VI.

Claims Against Defendant Reid
Plaintiff contends that Defendant Reid was deliberately indifferent to his serious medical

needs after Plaintiff fell from the transport van on May 6, 2015, nearly two weeks after the
events described involving Defendants Shoemaker and Sellers. Plaintiff cannot pursue unrelated
claims in one Section 1983 Complaint. Smith v. Owens, No. 14-14039, 2015 WL 4281241, at
*4 (11th Cir. July 16, 2015) (upholding this Court’s dismissal of unrelated claims pursuant to

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Federal Rule of Civil Procedure 20(a), which will allow the joinder of claims if the claims arise
“out of the same transaction, occurrence, or series of transactions or occurrences” and if “any
question of law or fact common to all defendants will arise in the action.”). Other than the fact
that his claims against Defendants Shoemaker and Sellers and his claims against Defendant Reid
occurred while he was incarcerated at Rogers State Prison, Plaintiff’s claims have no relation to
one another. These claims involve entirely different facts and occurrences as well as legal
standards. Accordingly, they cannot be pursued in the same action. Therefore, the Court should
DISMISS Plaintiff’s claims against Defendant Reid WITHOUT PREJUDICE.

Should

Plaintiff seek to pursue these claims, he must do so through a separate action. 4
VII.

Claims Against Defendants Shoemaker and Sellers
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,
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

4

The Court recognizes Plaintiff asserts he was being transported to Tattnall County Jail because he was
being charged with assaulting Defendant Sellers, and it was during this transport he fell and reinjured
himself. However, the passage of two weeks’ time between these incidents prevents these claims from
being related, as does the allegation that his fall caused him to reinjure himself. Fed. R. Civ. P. 20(a).

12

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 plausible claims that Defendants
Shoemaker and Sellers used excessive force against him on the date of the incident. He alleges
that Defendants Shoemaker and Sellers hit and kicked him and tried to ram his head into a brick
wall for no reason. These claims survive frivolity review.
VIII. Claims Against Booth Control Officer
“[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
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 contends the unnamed Booth Control Officer witnessed the alleged use of force
by Defendants Shoemaker and Sellers. Though Plaintiff does not explicitly state this officer

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failed to intervene on his behalf upon witnessing the excessive use of force, such a claim is
implicit in Plaintiff’s Complaint. This claim survives frivolity review, and the Clerk of Court is
DIRECTED to add “Booth Control Officer” as a named Defendant. As noted above, Plaintiff
shall have a period of thirty days to provide the Court with this officer’s identity.
IX.

Claims Against Defendant McIntosh
An inmate states a cognizable claim for the deprivation of his procedural due process

rights under the Fourteenth Amendment when he alleges the deprivation of a constitutionally
protected liberty or property interest, state action, and constitutionally inadequate process.
Shaarbay v. Palm Beach Cty. Jail, 350 F. App’x 359, 361 (11th Cir. 2009) (citing Cryder v.
Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). “Prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not
apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Rather, “a disciplinary proceeding,
whose outcome will ‘impose[ ] atypical and significant hardship on the inmate’ must ensure the
following due process rights: (1) advance written notice of the claimed violation, (2) a written
statement by the fact finders as to the evidence relied upon and the reasons for the disciplinary
action taken, and (3) an opportunity to call witnesses and present documentary evidence in his
defense.” Asad v. Crosby, 158 F. App’x 166, 173 (11th Cir. 2005) (citing Wolff, 418 U.S. at
563–67). Plaintiff’s assertion that he was not allowed to call witnesses or present documentary
evidence during the disciplinary hearing proceedings states a plausible procedural due process
claim. Thus, Plaintiff’s claims against Defendant McIntosh survive frivolity review.
CONCLUSION
For the numerous reasons set forth above, I RECOMMEND that the Court DISMISS all
monetary damages claims against Defendants in their official capacities and all claims against

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Defendants Bryson, Tattum, Tobby, Sanders, Anderson, Medical Administrator, Medical
Physician, and all of Rogers State Prison Correctional Facility. I also RECOMMEND that the
Court DISMISS Plaintiff’s claims against Defendant Reid without prejudice.
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.
REMAINING CLAIMS AND DEFENDANTS
Plaintiff’s allegations in his Complaint arguably state colorable claims for relief under 42
U.S.C. § 1983 for excessive force against Defendants Shoemaker and Sellers, failure to intervene

15

against Defendant Booth Control Officer, and procedural due process against Defendant
McIntosh. Consequently, a copy of Plaintiff’s Complaint and a copy of this Order shall be
served upon Defendants Shoemaker, Sellers, Booth Control Officer, and McIntosh 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
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.

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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).
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.
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

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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 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.

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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.
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.

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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
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 29th day of March,
2016.

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

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