Taylor v. Williams et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint for failure to state a claim, DIRECT the Clerk of Court to CLOSE this case, and DENY Plaintiff leave to proceed in forma pauperis on appeal. An y 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 4/14/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/31/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
FRANK JAMES TAYLOR,
CIVIL ACTION NO.: 6:16-cv-137
WARDEN DOUG WILLIAMS;
COUNSELOR SMITH; OFFICER
MITCHELL; OFFICER SANTIAGO; MR.
SIMMONS; CERT TEAM GOMAZ; and
CORRECTIONAL OFFICER CLARK,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is incarcerated at Hancock State Prison in Sparta, Georgia, filed the abovecaptioned Complaint pursuant to 42 U.S.C. § 1983 contesting events allegedly occurring at
Smith State Prison in Glennville, Georgia. (Doc. 1.) Concurrently, Plaintiff filed a Motion for
Leave to Proceed in Forma Pauperis. (Doc. 2.) The Court granted that Motion by Order dated
November 2, 2016. (Doc. 10.) For the reasons which follow, I RECOMMEND that the Court
DISMISS Plaintiff’s Complaint for failure to state a claim, DIRECT the Clerk of Court to
CLOSE this case, and DENY Plaintiff leave to proceed in forma pauperis on appeal.
In his Complaint, Plaintiff asserts a “disturbance broke out” in his dormitory, and the
disturbance involved weapons. (Doc. 1, p. 5.) Plaintiff contends he was stabbed twenty-six (26)
times by ten (10) different people over the course of forty-five (45) seconds in his head, chest,
back, and arms. Plaintiff contends he was also hit with a combination lock, which resulted in the
loss of vision in his right eye. (Id.) Plaintiff avers Defendant Clark and “cert team officers”
came into the dormitory and ran back out, leaving Plaintiff surrounded by people stabbing him.
(Id.) Plaintiff alleges “security staff” violated his constitutional rights. (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.
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)).
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.”). The requisite review of Plaintiff’s
Amended Complaint raises several doctrines of law, which the Court discusses in turn.
Plaintiff’s Claims Against Defendants Williams, Smith, Mitchell, Santiago,
Simmons, and Gomaz
Plaintiff fails to make any factual allegations against Defendants Williams, Smith,
Mitchell, Santiago, Simmons, or Gomaz. Plaintiff’s allegations are analyzed under the Standard
of Review set forth above, and the Court accepts Plaintiff’s non-conclusory factual allegations as
true, as the Court must at this stage. However, to state a claim for relief under Section 1983,
Plaintiff must satisfy two elements. First, he 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, Plaintiff must allege that
the act or omission was committed by “a person acting under color of state law.” Id.
As Plaintiff does not make any factual allegations against Defendants Williams, Smith,
Mitchell, Santiago, Simmons, or Gomaz, he cannot sustain a Section 1983 claim against these
Defendants. Id.; see also Fed. R. Civ. P. 8. Thus, the Court should DISMISS Plaintiff’s claims
against Defendants Williams, Smith, Mitchell, Santiago, Simmons, or Gomaz.
Plaintiff’s Claims Against Defendants Williams and Smith
Additional reasons support the dismissal of Plaintiff’s claims against Defendants
Williams and Smith, who are the Warden and Deputy Warden of Security, respectively, at Smith
State Prison. 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.
A supervisor may be liable only through personal participation in the alleged
constitutional violation or when there is a causal connection between the supervisor’s conduct
and the alleged violations. Id. at 802. “To state a claim against a supervisory defendant, the
plaintiff must allege (1) the supervisor’s personal involvement in the violation of his
constitutional rights, (2) the existence of a custom or policy that resulted in deliberate
indifference to the plaintiff’s constitutional rights, (3) facts supporting an inference that the
supervisor directed the unlawful action or knowingly failed to prevent it, or (4) a history of
widespread abuse that put the supervisor on notice of an alleged deprivation that he then failed to
correct.” Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011).
Here, Plaintiff seeks to hold Defendants Williams and Smith liable based on their
supervisory positions. Nevertheless, Plaintiff cannot do so. He points to no facts indicating
Defendants Williams and Smith were personally involved in the alleged violations of his
constitutional rights. Additionally, Plaintiff makes no allegations that Defendants Williams and
Smith instituted a policy or custom resulting in the violation of Plaintiff’s rights, failed to prevent
any unlawful action, or were aware of a history of widespread abuse that these two Defendants
failed to correct.
Consequently, the Court should DISMISS Plaintiff’s claims against
Defendants Williams and Smith for this additional reason.
Plaintiff’s Claims Against Defendant Clark
Plaintiff’s claims against Defendant Clark give rise to a discussion of the Eighth
Amendment of the United States Constitution. The Eighth Amendment can impose upon prison
officials the duty to intervene in some cases. In Johnson v. Boyd, 568 F. App’x 719 (11th Cir.
2014), the Eleventh Circuit Court of Appeals found that the plaintiff failed to state a claim for
failure to intervene where another inmate attacked the plaintiff, but the complaint was lacking
any allegations about the duration of the fight or that “the officers waited an unreasonable
amount of time to intervene after Hanley attacked [the plaintiff].” The court stated:
The district court partially construed Johnson’s complaint as a ‘failure to
intervene’ claim, citing Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998),
which holds that an officer has a duty to intervene if he observes a constitutional
violation and is in a position to intervene. While it is well settled that Ensley
applies to situations where one officer observes a fellow officer violating a
constitutional right, typically by using excessive force, we have not explicitly
adopted this holding in a situation involving an officer observing a fight between
Id. at 722 n.2 (emphasis added) (internal citation omitted).
Despite this footnote, the Eleventh Circuit has held that a prison official can be liable
under the Eighth Amendment for failing to take reasonable steps to intervene on behalf of the
victim of an ongoing assault by another inmate. Murphy v. Turpin, 159 F. App’x 945, 948 (11th
Cir. 2005) (applying deliberate indifference standard to claim that prison official failed to
intervene in inmate-on-inmate assault). “Prison correctional officers may be held directly liable
under § 1983 if they fail or refuse to intervene when a constitutional violation occurs in their
presence.” Terry v. Bailey, 376 F. App’x 894, 896 (11th Cir. 2010) (citing Ensley, 142 F.3d at
1407). “However, in order for liability to attach, the officers must have been in a position to
intervene.” Id. (internal citation omitted). Indeed, the Eleventh Circuit found in Johnson that a
failure to intervene claim, similar to a failure to protect claim, would require allegations that:
(1) another inmate’s physical assault created a substantial, objective risk of injury, (2) of which a
defendant is subjectively aware, (3) the defendant was in a position to intervene, and (4) the
defendant did not respond reasonably to the risk of injury. See Johnson, 568 F. App’x at 724–
25. In situations in which an inmate seeks to hold officers liable for failing to intervene in an
attack at the hands of another inmate, liability attaches only if the officer “‘was physically able
and had a realistic chance to intervene and act in time to protect the inmate plaintiff.’” Smith v.
Andrews, CV 114-206, 2016 WL 6818755, at *4 (S.D. Ga. Nov. 16, 2016) (quoting Glispy v.
Raymond, 2009 WL 2762636, *3 (S.D. Fla. 2009)), report and recommendation adopted, 2016
WL 7197446 (S.D. Ga. Dec. 9, 2016). “Regardless of the presence or absence of a weapon in
the hands of the attacking inmates, ‘no rule of constitutional law requires unarmed officials to
endanger their own safety in order to protect a prison inmate threatened with physical violence.’”
Seals v. Marcus, No. 1:11-CV-99-WLS, 2013 WL 656873, at *8 (M.D. Ga. Jan. 25, 2013)
(quoting Longoria v. Texas, 473 F.3d 586, 594 (5th Cir. 2006)); see also Prosser v. Ross, 70 F.3d
1005, 1008 (8th Cir. 1995) (“[P]rison guards have no constitutional duty to intervene in the
armed assault of one inmate upon another when intervention would place the guards in danger of
physical harm.”); Winfield v. Bass, 106 F.3d 525, 532 (4th Cir. 1997) (“[A]ll of the authority of
which we are aware leads to the conclusion that such heroic measures are not constitutionally
By Plaintiff’s own admission, a “disturbance broke out” in his dormitory, and the
stabbing he endured lasted less than a minute. (Doc. 1, p. 5.) Even if Defendant Clark ran into
the dormitory and then left the dormitory soon thereafter, as Plaintiff contends, Plaintiff fails to
set forth facts indicating that Defendant Clark would have had time to intervene in the attack
against Plaintiff, i.e., Plaintiff fails to contend Defendant Clark was in a position to intervene on
In addition, Plaintiff contends he was surrounded by people who were
stabbing him, but he fails to contend that Defendant Clark could have intervened on Plaintiff’s
behalf (even if he had had the time to do so) in a safe manner. As a result, Plaintiff fails to set
forth a viable Eighth Amendment claim against Defendant Clark, and the Court should
DISMISS Plaintiff’s claims against Defendant Clark.
For these reasons, the Court should DISMISS Plaintiff’s claims in their entirety.
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff
has, of course, not yet filed a notice of appeal, it is proper to address these issues in the Court’s
order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
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). Or, 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.
For the above-stated reasons, I RECOMMEND the Court DISMISS this action for
failure to state a claim and DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and to CLOSE this case. I further RECOMMEND that the Court DENY Plaintiff
leave to proceed in forma pauperis on appeal.
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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 31st day of March,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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