Daniels v. Upton et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Defendants' 34 MOTION to Dismiss, DISMISS Plaintiff's 1 Complaint, DISMISS AS MOOT all other pending Motions, and DENY Plaintiff leave to appeal in forma pauperis . It is further RECOMMENDED that the Court DIRECT the Clerk of Court to CLOSE this case. 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. (Objections to R&R due by 8/8/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/25/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:16-cv-94
MANAGER UPTON; WARDEN ROBERT
TOOLE; and STANLEY WILLIAMS,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Georgia State Prison (“GSP”) in Reidsville, Georgia, filed this
cause of action pursuant to 42 U.S.C. § 1983 alleging that Defendants violated his constitutional
rights. For the reasons set forth below, I RECOMMEND that the Court GRANT Defendants’
Motion to Dismiss, (doc. 34), DISMISS Plaintiff’s Complaint, DISMISS AS MOOT all other
pending Motions, and DENY Plaintiff leave to appeal in forma pauperis.
RECOMMEND that the Court DIRECT the Clerk of Court to CLOSE this case.
On March 13, 2014, prison officials at GSP assigned Plaintiff to the Tier II administrative
segregation unit while the Inmate Affairs Unit and the Georgia Department of Corrections
investigated an assault that occurred while Plaintiff was incarcerated at Smith State Prison in
Glennville, Georgia. (Doc. 1, p. 2.) Plaintiff states that, although he does not qualify for Tier II
The Court takes the following facts from Plaintiff’s Complaint, (doc. 1), and Amended Complaint,
(doc. 4), and assumes them to be true, as it must at this stage. The Court refers to relevant allegations
from Plaintiff’s original Complaint because Plaintiff indicated that his Amended Complaint only
amended portions of the original filing. (Doc. 4, pp. 1, 4.)
placement under GSP’s program criteria, Defendants are continuing to hold him in Tier II as
punishment for being assaulted at Smith State Prison. (Id. at p. 3.)
Plaintiff contends that, during his segregation, he has had all his personal property taken
away, lost all his privileges, and lost nearly thirty pounds. (Doc. 4, p. 2.) Plaintiff claims that
conditions in Tier II are “unacceptably bad.” (Doc. 1, p. 6.) Specifically, he complains of, inter
alia, poor cell sanitation, inmates throwing feces, dusty ventilation, insects, excessive noise, poor
showers, “poorly ran recreation,” and dirty food trays. (Id.)
On August 25, 2016, the Court conducted the requisite frivolity review and allowed only
Plaintiff’s due process claims to proceed. (Docs. 12, 15.) On January 18, 2017, Defendants filed
a Motion to Dismiss, (doc. 34), to which Plaintiff filed Objections, (doc. 38). On May 1, 2017,
Plaintiff filed additional Objections, (doc. 56), Defendants filed a Reply, (doc. 59), and Plaintiff
filed a Response, (doc. 62).
STANDARD OF REVIEW
Under a Rule 12(b)(6) motion to dismiss, a court must “accept[ ] the allegations in the
complaint as true and constru[e] them in the light most favorable to the plaintiff.” Belanger v.
Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). “A complaint must state a facially
plausible claim for relief, and ‘[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action” does not suffice.
Iqbal, 556 U.S. at 678.
“The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”
Id. (internal punctuation and citation
omitted). While a court must accept all factual allegations in a complaint as true, this tenet “is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. Id.
The Due Process Clause of the Fourteenth Amendment protects against State
deprivations of “life, liberty, or property without due process of law.” U.S. Const. amend. XIV.
“The most familiar office of that Clause is to provide a guarantee of fair procedure in connection
with any deprivation of life, liberty, or property by a State.” Collins v. City of Harker Heights,
503 U.S. 115, 125 (1992). This is known as the procedural due process component of the
Clause. However, the meaning of “liberty” under the Due Process Clause has been expanded to
include certain implied, “fundamental rights” that “cannot be limited at all, except by provisions
that are narrowly tailored to serve a compelling state interest.” Kerry v. Din, ___ U.S. ___, 135
S. Ct. 2128, 2133 (June 15, 2015) (quotations and citations omitted). This guarantee is known as
the substantive component of the Due Process Clause. 2
Substantive due process is a controversial and frequently assailed doctrine. See, e.g., McDonald v. City
of Chicago, 561 U.S. 742, 811 (2010) (Thomas, J., concurring) (“The notion that a constitutional
provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could
define the substance of those rights strains credulity for even the most casual user of words. . . . The one
theme that links the Court’s substantive due process precedents together is their lack of a guiding
principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do
not.”); Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 161 (2011) (Scalia, J., dissenting)
(describing substantive due process as an “infinitely plastic concept”).
Procedural Due Process
A Section 1983 action alleging a procedural due process violation requires proof of three
elements: “deprivation of a constitutionally-protected liberty or property interest; state action;
and constitutionally-inadequate process.”
Cryder v. Oxendine, 24 F.3d 175, 177 (11th
Cir. 1994). Plaintiff does not allege that his due process right to property has been threatened by
his placement in Tier II segregation. Accordingly, the appropriate due process analysis requires
a look into Plaintiff’s liberty interests.
Historically, the liberty interest protected by the Due Process Clause included the right
“generally to enjoy those privileges long recognized at common law as essential to the orderly
pursuit of happiness by free men.” Ingraham v. Wright, 430 U.S. 651, 673 (1977) (citations
omitted); see also Kerry, ___ U.S. at ___, 135 S. Ct. at 2132–33. However, the Eleventh Circuit
Court of Appeals has identified two situations in which a prisoner—already deprived of liberty in
the traditional sense—can be further deprived of liberty such that procedural due process
protections are required: (1) when there is a “change in the prisoner’s conditions of confinement
so severe that it essentially exceeds the sentence imposed by the court[ ]”; and (2) when the State
has consistently given a benefit to prisoners, usually through a statute or administrative policy,
and the deprivation of that benefit “imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Kirby v. Siegelman, 195 F.3d 1285, 1291 (11th
Cir. 1999) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Under the first scenario, the
liberty interest arises from the Due Process Clause itself and “exists apart from the state; in the
second, the liberty interest is created by the state.” Id. (citing Bass v. Perrin, 170 F.3d 1312,
1318 (11th Cir. 1999)); see also Sandin, 515 U.S. at 484 (“[Liberty] interests will be generally
limited to freedom from restraint which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of its own force, nonetheless
imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.”) (internal citations omitted).
Whether Plaintiff Alleges a Liberty Interest Arising from the Due
Process Clause Itself
Our judicial history is replete with cases determining when the conditions of confinement
are so severe that it essentially exceeds the sentence imposed by the court. See, e.g., Washington
v. Harper, 494 U.S. 210 (1990) (liberty interest in avoiding involuntary administration of
psychotropic drugs to inmate); Vitek v. Jones, 445 U.S. 480 (1980) (liberty interest in avoiding
involuntary psychiatric treatment and commitment to mental institution); Kirby, 195 F.3d 1285
(liberty interest in not being branded a sex offender when inmate was never convicted of a sex
crime). These cases all address a liberty interest arising from the Due Process Clause itself and
are “expressly protected . . . under the original understanding of the term [liberty].” Kerry, ___
U.S. at ___, 135 S. Ct. at 2137. Notably, this interest does not include “a liberty interest in
avoiding transfer to more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S.
209, 221 (2005) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)); see also Sandin, 515 U.S.
at 485 (“Discipline by prison officials [including disciplinary segregation] in response to a wide
range of misconduct falls within the expected perimeters of the sentence imposed by a court of
Accordingly, Plaintiff’s placement in Tier II segregation does not implicate a liberty
interest arising from the Due Process Clause itself. Plaintiff’s segregation does not rise to the
level of a change so severe that his conditions of confinement essentially exceed the sentence
imposed by the Court.
Whether Plaintiff Alleges a State-Created Liberty Interest
However, “a liberty interest in avoiding particular conditions of confinement may arise
from state policies or regulations, subject to the important limitations set forth in Sandin[.]”
Wilkinson, 545 U.S. at 222 (internal citation omitted). Specifically, “the touchstone of the
inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive
conditions of confinement is not the language of regulations regarding those conditions but the
nature of those conditions themselves[.]”
Id. at 223.
Thus, Sandin requires the Court to
determine whether the conditions of confinement impose an atypical and significant hardship on
the inmate “in relation to the ordinary incidents of prison life.” 515 U.S. at 484. 3
Defendants argue that Plaintiff fails to allege sufficient facts to indicate that conditions of
confinement in Tier II impose an atypical and significant hardship. (Doc. 34-1.) Specifically,
Defendants argue that Plaintiff fails to “make any allegation regarding the conditions of ordinary
prison life or how the alleged conditions of his own confinement represent a significant hardship
in comparison.” (Id. at p. 8.) In his Objections, Plaintiff largely focuses on how he should not
have been placed in Tier II because he “did not do anything wrong” and how Defendants did not
properly conduct the investigation into his assault. (Doc. 38-1.) 4
In Sandin, the United States Supreme Court found no liberty interest when an inmate was assigned to
segregated confinement for thirty days because it did not “present a dramatic departure from the basic
conditions of [the inmate’s] sentence.” 515 U.S. at 485. The Supreme Court noted that the inmate’s
sentence was unaffected by this assignment, and the conditions of disciplinary segregation mirrored the
conditions of administrative segregation and protective custody. Id. at 485–86.
Plaintiff attempts to provide new facts regarding the differences between Tier II and general population
prison conditions in his May 1, 2017, Objections. (Doc. 56-1.) However, Plaintiff’s May 1, 2017,
Objections were filed nearly three months past the Objections filing deadline, and Plaintiff provided no
explanation as to why he was so dilatory in submitting his additional Objections. In fact, the record
shows that Plaintiff was clearly capable of timely filing Objections, and he did indeed do so on January
30, 2017, (doc. 38). Thus, the Court will not consider Plaintiff’s untimely filed May 1, 2017, Objections.
Furthermore, to the extent Plaintiff seeks to amend his Complaint with his May 1, 2017, Objections, he
may not do so. As the Court specifically instructed Plaintiff, the “filing of Objections is not a proper
While Plaintiff makes various allegations regarding the conditions of his confinement in
Tier II, Plaintiff fails to provide any detail as to how his conditions differ from that of the general
population. In fact, Plaintiff’s only claim of differing conditions is a conclusory allegation that
he “is being denied and deprived of his full privilege’s [sic] which he’s entitled to just like the
general population prisoner’s [sic].” (Doc. 1, p. 7; see also id. at pp. 8–9.) 5 However, Plaintiff
fails to elaborate what these privileges might be and whether they are denied because of his
status as a Tier II inmate. These conclusory allegations are insufficient to support a claim of due
process. See Iqbal, 556 U.S. at 678 (“[A] complaint [does not] suffice if it tenders naked
assertions devoid of further factual enhancement.”) (internal quotations and citations omitted).
Thus, Plaintiff fails to set forth facts to support his claim that the conditions in Tier II segregation
impose the type of atypical and significant hardship to trigger a state-created liberty interest. See
Walker v. Grable, 414 F. App’x 187 (11th Cir. 2011) (no liberty interest where inmate failed to
allege that conditions in segregation were different from conditions in general population); Smith
v. Reg’l Dir. of Fla. Dep’t of Corr., 368 F. App’x 9 (11th Cir. 2010) (no liberty interest found for
inmate placed in segregation because plaintiff could not show that segregation caused a major
vehicle through which to make new allegations or present additional evidence.” (Doc. 12, p. 18); see also
Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009).
Yet even if the Court, in an abundance of caution, were to consider the claims alleged in
Plaintiff’s May 1, 2017, Objections, they would be unhelpful to his case. Plaintiff’s Objections still fail to
make specific allegations as to how the conditions in Tier II impose an atypical and significant hardship
in relation to the ordinary incidents of prison life. While Plaintiff provides various case citations and their
summaries, he fails to include any relevant details describing how conditions in Tier II meaningfully
differ from those in general population. (Doc. 38, pp. 3–5.) In fact, Plaintiff’s allegations appear to be
generalized complaints of prison conditions overall rather than any specific claim that the conditions are
unique to Tier II. (Id.)
Plaintiff makes one specific allegation that the “tier 2 program has limits on the food and other items
you can buy.” (Doc. 1, p. 4.) This allegation alone—particularly without further explanation as to how
this restriction has affected Plaintiff—is insufficient to trigger constitutional protection. See Sandin, 515
U.S. at 485 (“Lawful incarceration brings about the necessary withdrawal or limitation of many privileges
and rights[.]”) (internal quotations and citations omitted); see also Moulds v. Bullard, 345 F. App’x 387,
396 (11th Cir. 2009) (no liberty interest found where prisoner was denied, among other things, one meal
per day and failed to allege facts showing that his diet, as a whole, was inadequate).
disruption to his environment as compared to placement in general population); Smith v. Sec’y,
Fla. Dep’t of Corr., 358 F. App’x 60 (11th Cir. 2009).
Accordingly, the Court should GRANT this portion of Defendants’ Motion to Dismiss
and DISMISS Plaintiff’s procedural due process claims.
Substantive Due Process
As established above, the substantive component of the Due Process Clause “provides
heightened protection against government interference with certain fundamental rights[.]”
Washington v. Glucksberg, 521 U.S. 702, 718–19 (1997) (internal citations omitted). If Plaintiff
has a fundamental right, then the government may not infringe on that right unless it proves that
the limitation is “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507
U.S. 292, 302 (1993).
The Supreme Court has specified these fundamental rights throughout a long line of
cases. See Glucksberg, 521 U.S. at 720 (collecting cases). However, any substantive due
process analysis “must begin with a careful description of the asserted right,” because the
“doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked
to break new ground in this field.” Reno, 507 U.S. at 302 (internal quotation and citations
omitted). Furthermore, in determining what a fundamental right is, “the relevant question is not
whether the asserted interest is consistent with this Court’s substantive-due-process line of cases,
but whether it is supported by this Nation’s history and practice.” Kerry, ___ U.S. at ___, 135 S.
Ct. at 2135 (internal quotations and citations omitted). Specifically, fundamental liberty rights
must be so “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” Glucksberg, 521 U.S. at 720–21 (internal quotations and citations omitted).
Here, Plaintiff claims that he has a fundamental right to be free from administrative
segregation from the prison’s general poplulation. This right is not already enumerated within
the Supreme Court’s “substantive-due-process line of cases.” Accordingly, the Court must
determine whether there is a “deeply rooted” history and practice to be free of segregation. The
Supreme Court has repeatedly found that “lawfully incarcerated persons retain only a narrow
range of protected liberty interests.” Hewitt v. Helms, 459 U.S. 460, 467 (1983); see also
Montanye v. Haymes, 427 U.S. 236, 242 (1976) (“As long as the conditions or degree of
confinement to which the prisoner is subjected is within the sentence imposed upon him and is
not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an
inmate’s treatment by prison authorities to judicial oversight.”). Furthermore, the Supreme
Court’s decisions “have consistently refused to recognize more than the most basic liberty
interests in prisoners.” Id. These interests do not include freedom from more adverse conditions
of confinement. Meachum, 427 U.S. at 224–25. Thus, there is no “objectively, deeply rooted”
history and practice in this Nation to be free from segregation or even a segregation with more
Accordingly, the Court should GRANT this portion of Defendants’ Motion to Dismiss
and DISMISS Plaintiff’s substantive due process claims.
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 6
Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not taken in good faith “before or after the notice of appeal is filed”).
A certificate of appealability is not required in this Section 1983 action.
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
Based on the foregoing, I RECOMMEND that the Court GRANT Defendants’ Motion
to Dismiss, (doc. 34), DISMISS Plaintiff’s Complaint, DISMISS AS MOOT all other pending
Motions, and DENY Plaintiff leave to appeal in forma pauperis. I further RECOMMEND that
the Court DIRECT the Clerk of Court to CLOSE this case.
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 Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 25th day of July, 2017.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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