LYONS v. DUGUSKI et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 20 Amended Complaint, for failure to state a claim, DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case, and DENY Plaint iff leave to proceed in forma pauperis on appeal. The Court ORDERS that 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. (Objections to R&R due by 3/23/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/9/2018. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
JANEY M. LYONS,
CIVIL ACTION NO.: 6:17-cv-63
COURTNEY DUGUSKI; SERCOYER REID
WILSON; and OFFICER BATTIE,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently housed at Pulaski State Prison in Hawkinsville, Georgia, brought this
action pursuant to 42 U.S.C. § 1983 contesting certain conditions of her confinement while
housed at Emanuel Women’s Facility in Swainsboro, Georgia. (Docs. 1, 15, 20.) For the
reasons set forth below, I RECOMMEND that the Court DISMISS Plaintiff’s Complaint, as
amended, for failure to state a claim, DIRECT the Clerk of Court to enter the appropriate
judgment of dismissal and CLOSE this case, and DENY Plaintiff leave to proceed in forma
pauperis on appeal.
PLAINTIFF’S ALLEGATIONS 1
Plaintiff appears to allege that, sometime in December 2016, Defendant Battie requested
to see Defendant Duguski outside the dorm. (Doc. 20, p. 7.) Afterwards, Defendant Duguski
“came back in raising hell because Officer Battie was calling her out on bull crap.” (Id.)
Plaintiff claims that Defendant Duguski then proceeded to sexually assault Plaintiff in the
The below recited facts are taken from Plaintiff’s Second Amended Complaint, (doc. 20), the operative
Complaint in this action, and are accepted as true, as they must be at this stage. See Lowery v. Ala.
Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007) (“[A]n amended complaint supersedes the initial
complaint and becomes the operative pleading in the case.”).
bathroom. (Id. at pp. 5, 7.) Plaintiff also appears to allege that, at some point, Defendant Wilson
also sexually assaulted Plaintiff and physically beat her in their shared dorm. (Id. at p. 8.)
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, 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, 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)).
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 . . . .”) (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.”).
Claims Against Private Actors
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 her “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. The state-actor
requirement traditionally precludes suit against a private party under Section 1983, because a
private party may qualify as a state actor for Section 1983 purposes only in “rare circumstances.”
Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). The Eleventh Circuit Court of Appeals
recognizes that a private party may be liable as a “state actor” for a constitutional violation only
in the following circumstances: (1) “the State has coerced or at least significantly encouraged the
action alleged to violate the Constitution”; (2) “the private parties performed a public function
that was traditionally the exclusive prerogative of the State”; or (3) “the State had so far
insinuated itself into a position of interdependence with the [private parties] that it was a joint
participant in the enterprise[ ].” Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th
Cir. 2001) (alterations in original) (quoting NBC, Inc. v. Comm’cns Workers of Am., 860 F.2d
1022, 1026–27 (11th Cir. 1988)).
Plaintiff's Second Amended Complaint does not allege facts supporting any of these
circumstances. Defendants Duguski and Wilson are inmates at Emanuel Women’s Facility, and
Plaintiff makes no allegations that Defendants are in any way affiliated with the State of
Georgia. 2 (Doc. 20, p. 7.) Accordingly, Plaintiff has failed to allege sufficient facts plausibly
suggesting that Defendants Duguski and Wilson are state actors subject to liability under Section
Therefore, I RECOMMEND the Court DISMISS Plaintiff’s claims against Defendants
Duguski and Wilson.
Claims Against Defendant Battie
Plaintiff appears to claim that Defendant Battie violated her constitutional rights by
failing to protect her against Defendants Duguski and Wilson.
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 her 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
The docket of this case erroneously indicates that Defendants Duguski and Wilson are Correctional
Officers at Emanuel Women’s Facility. Plaintiff’s Second Amended Complaint makes clear that
Defendants Duguski and Wilson are inmates at the Facility. (Doc. 20, p. 7.)
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
mere negligence.” Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (citing McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). 3
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
indifference.’” Miller v. King, 384 F.3d 1248, 1260–61 (11th Cir. 2004) (quoting Farmer, 511
U.S. at 837). 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).
Eleventh Circuit case law on whether a claim of deliberate indifference requires “more than gross
negligence” or “more than mere negligence” is contradictory. Compare Goebert v. Lee Cty., 510 F.3d
1312, 1327 (11th Cir. 2007), with Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011). In Melton
v. Abston, 841 F.3d 1207, 1223 (11th Cir. 2016), the Eleventh Circuit found “more than mere
negligence” to be the appropriate standard. 841 F.3d at 1223 n.2. Even so, at least two unpublished
Eleventh Circuit cases post-Melton have continued to use the “gross negligence” standard. See, e.g.,
Woodyard v. Ala. Dep’t of Corr., 2017 WL 2829376 (11th Cir. June 30, 2017); Sifford v. Ford, 2017 WL
2874517 (11th Cir. July 6, 2017). However, because the Eleventh Circuit explicitly addressed this issue
in Melton, this Court will apply the “more than mere negligence” standard.
Plaintiff avers that she wrote to her counselor to inform her of “the things Correctional
Officer S. Battie was letting go on while she was working H-Building I-10 Faith and Character
Dorm.” (Doc. 20, p. 7.) However, other than this generalized statement, Plaintiff fails to
provide sufficient facts to allege that Defendant Battie knew specifically of Plaintiff’s risk of
injury by Defendants Duguski and Wilson and deliberately ignored it.
(Doc. 20, p. 7.)
Accordingly, Plaintiff fails to allege that Defendant Battie was faced with a known risk of injury
that rises to the level of a strong likelihood prior to the assaults on Plaintiff.
Accordingly, the Court should DISMISS Plaintiff’s claims against Defendant Battie.
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 4
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”).
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
A certificate of appealability is not required in this Section 1983 action.
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 reasons set forth above, I RECOMMEND that the Court DISMISS Plaintiff’s
Complaint, as amended, for failure to state a claim, DIRECT the Clerk of Court to enter the
appropriate judgment of dismissal and to CLOSE this case, and 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 9th day of March,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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