Acree v. Allen et al
Filing
14
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's claims against Defendants Allen, Bobbit, Kilgore, Pineiro, and the Georgia Department of Corrections. Additionally, the Court should DENY Plaintiff leave to appeal in forma pauperis as to these claims. The Court should DISMISS as prematurely filed Plaintiff's 11 MOTION for Summary Judgment and DISMISS Plaintiff's 13 Motions for Preliminary Injunction. Consequently, a copy of Plaintiff& #039;s Amended Complaint and a copy of this Order shall be served upon Defendants Hutcheson, Fuggitt, Mosley, Williams, and Shoemaker by the United States Marshal. The Court DIRECTS Plaintiff to advise the Court within thirty (30) days if individuals other than the identified Defendants are allegedly responsible for the deliberate indifference to serious medical needs he contends he experienced. Any party seeking to object to this Report and Recommendation is ordered to file specific written ob jections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 7/17/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/3/2018. (Attachments: # 1 USM-285 Forms) (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WILLIAM A. ACREE,
Plaintiff,
CIVIL ACTION NO.: 6:17-cv-107
v.
WARDEN MARTY ALLEN; DEPUTY
WARDEN TREVONZA BOBBITT; UNIT
MANAGER JOSEPH HUTCHENSON;
DEPUTY WARDEN SHERRY KILGORE;
DEPUTY WARDEN PINEIRO; LT. RONNIE
SHOEMAKER; SGT. FUGATES; OFFICER
DASIA MOSLEY; OFFICER MONICA
WILLIAMS; and GEORGIA DEPARTMENT
OF CORRECTIONS, 1
Defendants.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Georgia State Prison in Reidsville, Georgia, filed a
Complaint, as amended, pursuant to 42 U.S.C. § 1983 contesting certain conditions of his
confinement. (Docs. 1, 4.) Plaintiff also filed a Motion for Summary Judgment 2 and Motions
for Preliminary Injunction.
(Docs. 11, 12, 13.)
For the reasons set forth below, I
RECOMMEND the Court DISMISS Plaintiff’s claims against Defendants Allen, Bobbitt,
Kilgore, Pineiro, and the Georgia Department of Corrections. Additionally, the Court should
DENY Plaintiff leave to appeal in forma pauperis as to these claims. The Court should also
DISMISS as prematurely filed Plaintiff’s Motion for Summary Judgment and DISMISS
1
2
The Court DIRECTS the Clerk of Court to amend the caption upon the record and docket of this case.
The Clerk’s Office docketed Plaintiff’s Motion for Summary Judgment as also including “Motion that
the Court Reporter Transcribe and File Transcripts.” (Doc. 11.) There is no indication from Plaintiff’s
Motion he is also seeking that relief.
Plaintiff’s Motions for preliminary injunctive relief. However, the Court finds Plaintiff sets forth
colorable retaliation, excessive force, and deliberate indifference claims against Defendants
Hutchenson, Fuggitt, Mosley, Williams, and Shoemaker. Consequently, a copy of Plaintiff’s
Amended Complaint, (doc. 4), and a copy of this Order shall be served upon Defendants
Hutchenson, Fuggitt, Mosley, Williams, and Shoemaker by the United States Marshal without
prepayment of cost.
PLAINTIFF’S ALLEGATIONS
In his Amended Complaint, Plaintiff contends he filed a claim under the Prison Rape
Elimination Act (“PREA”) against Defendant Mosley on May 26, 2017, after Defendant Mosley
sexually harassed him.
(Doc. 4, p. 8.)
On May 31, 2017, Plaintiff asserts Defendants
Shoemaker, Fugitt, 3 Mosley, and Williams sprayed a chemical agent into Plaintiff’s cell, even
though he was restrained. (Id. at p. 7.) According to Plaintiff, Defendant Hutchenson gave the
final order for this use of force. Plaintiff alleges Defendants Shoemaker and Fuggit dragged him
out of his cell and took him to a strip cell for eighteen (18) hours. Plaintiff maintains he was
forced back into his cell without it being decontaminated or cleaned. (Id.) Plaintiff avers
Defendants Allen, Bobbitt, Kilgore, and Pineiro are “all accountable because it is their duty and
responsibility to ensure proper procedures and policy [are] being followed by their state
employees, and the laws are not broken. (Id.) Plaintiff also alleges he suffered from chemical
reactions, breathing irregularities, skin breakouts, and long-term breathing problems and was
denied medical care after the use of excessive force. (Id. at p. 8.)
3
This Defendant is identified as “Fugates” upon the caption of this case, yet Plaintiff refers to this
Defendant as “Fuggitt” in the body of his Amended Complaint. Thus, so does the Court.
2
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. 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, 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, 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).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a complaint on an application to proceed in forma pauperis. 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) (per curiam).
3
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.”).
4
DISCUSSION
I.
Plaintiff’s Claims Against Defendants Allen, Bobbitt, Kilgore, and Pineiro
Section 1983 liability must be based on something more than a defendant’s supervisory
position or a theory of respondeat superior. 4 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
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) (per curiam) (citation omitted).
Plaintiff seeks to hold Defendants Allen, Bobbitt, Kilgore, and Pineiro liable solely based
on their supervisory positions as Warden and Deputy Wardens at Georgia State Prison.
However, Plaintiff fails to present any facts indicating there is a causal connection between any
actions or inaction of these Defendants and the alleged violation of Plaintiff’s constitutional
rights. He does not allege these Defendants were personally involved in the conditions that he
complains of or that the conditions resulted from some custom or policy these Defendants
promulgated or maintained. Plaintiff also fails to plausibly allege that these Defendants directed
the allegedly unlawful conditions or ignored a widespread history of abuse in this regard. In fact,
4
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).
5
Plaintiff fails to make any factual allegations against these Defendants, let alone even conclusory
allegations that these Defendants were aware of or were personally responsible for the alleged
violations of Plaintiff’s constitutional rights. Instead, Plaintiff baldly states Defendants Allen,
Bobbitt, Kilgore, and Pineiro are accountable because they have a duty to ensure their employees
follow policy and procedures.
(Doc. 4, p. 7.)
Accordingly, the Court should DISMISS
Plaintiff’s claims against Defendants Allen, Bobbitt, Kilgore, and Pineiro.
II.
Plaintiff’s Claims Against the Georgia Department of Corrections
Plaintiff names the Georgia Department of Corrections as a Defendant, yet he makes no
factual allegations against this entity. 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 County, 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, penal
institutions, and private corporations which contract with states to operate penal institutions are
generally not considered legal entities subject to suit. Dean v. Barber, 951 F.2d 1210, 1214 (11th
Cir. 1992) (“Sheriff’s departments and police departments are not usually considered legal
entities subject to suit . . . .”) (citations omitted); Lawal v. Fowler, 196 F. App’x 765, 768 (11th
Cir. 2006) (per curiam) (analyzing Georgia law and concluding the same); 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.”) (citations omitted); Shelby v. Atlanta, 578 F. Supp. 1368,
6
1370 (N.D. Ga. 1984) (dismissing the Atlanta Police Department as an improper Section 1983
defendant).
In addition, Plaintiff’s claims against the Georgia Department of Corrections are subject
to dismissal under the Eleventh Amendment to the United States Constitution. Stevens v. Gay,
846 F.2d 113, 115 (11th Cir. 1989) (“The Eleventh Amendment bars this action against the
Georgia Department of Corrections and Board of Corrections.” (citing Alabama v. Pugh, 483
U.S. 781, 782 (1978) (per curiam)); see also Leonard v. Dep’t of Corrs., 782 F. App’x 892, 894
(11th Cir. 2007) (per curiam) (noting the Eleventh Amendment bars suit against the Georgia
Department of Corrections).
In this case, Plaintiff cannot sustain any putative claims against the Georgia Department
of Corrections, as this is not an entity subject to suit under Section 1983. In addition, any claims
against the Georgia Department of Corrections are barred by the Eleventh Amendment. Thus,
the Court should DISMISS Plaintiff’s claims against the Georgia Department of Corrections.
III.
Plaintiff’s Claims Against Defendants Shoemaker, Fuggitt, Mosley, Williams, and
Hutchenson
Plaintiff asserts he filed a PREA complaint against Defendant Mosley, and five days later
Defendants Shoemaker, Fuggitt, Mosley, Williams, and Hutchenson used or authorized an
excessive use of force against him. As a result of this excessive use of force, Plaintiff suffered
physical injury and was denied necessary medical care and treatment. (Doc. 4, pp. 7–8.) These
claims raise several doctrines of law, which the Court addresses in turn.
A.
Retaliation
It is an established principle of constitutional law that an inmate is considered to be
exercising his First Amendment right of freedom of speech when he complains to the prison’s
administrators about the conditions of his confinement. O’Bryant v. Finch, 637 F.3d 1207, 1212
7
(11th Cir. 2011). It is also established that an inmate may maintain a cause of action against
prison administrators who retaliate against him for making such complaints. Id. (quoting Smith
v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008) (citation and punctuation omitted)). “To
establish a First Amendment retaliation claim, a prisoner need not allege the violation of an
additional separate and distinct constitutional right; instead, the core of the claim is that the
prisoner is being retaliated against for exercising his right to free speech.” O’Bryant, 637 F.3d at
1212. “To prevail, the inmate must establish these elements: (1) his speech was constitutionally
protected; (2) the inmate suffered adverse action such that the administrator’s allegedly
retaliatory conduct would likely deter a person of ordinary firmness from engaging in such
speech; and (3) there is a causal relationship between the retaliatory action and the protected
speech.” Smith, 532 F.3d at 1276 (citing Bennett v. Hendrix, 423 F.3d 1247, 1250, 1254 (11th
Cir. 2005)).
Plaintiff’s filing of a PREA complaint is arguably protected speech, and the resulting
excessive of use of force cannot be said to be too far removed temporally from Plaintiff’s
exercise of his First Amendment rights to be unrelated occurrences. Thus, Plaintiff states an
arguable retaliation claim against Defendants Hutchenson, Shoemaker, Fuggitt, Mosley, and
Williams.
B.
Excessive Use of Force
The Eighth Amendment’s proscription 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.”
8
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 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) (per curiam) (quoting Fennell v. Gilstrap, 559 F.3d 1212, 1217
(11th Cir. 2009)).
Looking to the relevant factors, I find that Plaintiff’s contention that Defendants
Shoemaker, Fuggitt, Mosley, Williams, and Hutchenson sprayed chemicals into his cell without
provocation (or authorized this action) arguably sets forth a colorable excessive force claim.
C.
Deliberate Indifference to Serious Medical Needs
The standard for cruel and unusual punishment in the medical care context, embodied in
the principles expressed in Estelle v. Gamble, 429 U.S. 97, 104 (1976), is whether a prison
official exhibits a deliberate indifference to the serious medical needs of an inmate. Farmer, 511
U.S. at 828. However, “not every claim by a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment.” Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991) (quoting Estelle, 429 U.S. at 105). Rather, “an inmate must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994).
9
Thus, in order to prove a deliberate indifference to medical care claim, similar to any
other deliberate indifference claim, a prisoner must: (1) “satisfy the objective component by
showing that [he] had a serious medical need”; (2) “satisfy the subjective component by showing
that the prison official acted with deliberate indifference to [his] serious medical need”; and
(3) “show that the injury was caused by the defendant’s wrongful conduct.” Goebert v. Lee
County, 510 F.3d 1312, 1326 (11th Cir. 2007). As to the first component, a medical need is
serious if it “‘has been diagnosed by a physician as mandating treatment or [is] one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” Id.
(quoting Hill, 40 F.3d at 1187). Under the second, subjective component, the Eleventh Circuit
Court of Appeals has consistently required that “a defendant know of and disregard an excessive
risk to an inmate’s health and safety.” Haney v. City of Cumming, 69 F.3d 1098, 1102 (11th Cir.
1995). Thus, the subjective component requires an inmate to prove: “(1) subjective knowledge
of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere
negligence.” Melton v. Abston, 841 F.3d 1207, 1223 (11th Cir. 2016).
“Conduct that is more than mere negligence includes: (1) grossly inadequate care; (2) a
decision to take an easier but less efficacious course of treatment; and (3) medical care that is so
cursory as to amount to no treatment at all.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th
Cir. 2011).
Plaintiff’s allegations that he suffered physical injuries as a result of the alleged excessive
use of force and was denied medical treatment set forth plausible deliberate indifference claims
against Defendants Shoemaker, Fuggitt, Mosley, Williams, and Hutchenson. 5
5
Plaintiff’s Amended Complaint is hardly the picture of clarity. However, in viewing the allegations as
true, as the Court must at this stage, Plaintiff states arguable claims for relief, even as to his deliberate
indifference claims. The Court DIRECTS Plaintiff to advise the Court within thirty (30) days if
10
IV.
Plaintiff’s Motion for Summary Judgment (Doc. 11)
Plaintiff moves for summary judgment, requesting that the Court decide at least some
part of this case without a trial. (Doc. 11.) Plaintiff also requests this Court issue an order for
immediate release. (Id.)
Summary judgment is required where “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment bears the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy
this burden, the movant must show the court that there is an absence of evidence to support the
nonmoving party’s case. Id. at 325. A fact is “material” if it “might affect the outcome of the
suit under the governing law.” FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d 1282, 1307
(11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute
over such a fact is “genuine” if the “evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. In making this determination, the court is to view all of the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507
(11th Cir. 2000).
Plaintiff’s Motion before the Court is premature. The Court has yet to order service of
Plaintiff’s Amended Complaint. As a result, the parties have not had any opportunity to conduct
discovery. “The law in this circuit is clear: the party opposing a motion for summary judgment
should be permitted an adequate opportunity to complete discovery prior to consideration of the
motion.” Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir. 1997) (per curiam). No such
individuals other than the identified Defendants are allegedly responsible for the deliberate indifference to
serious medical needs he contends he experienced.
11
discovery has occurred here. Regardless, Plaintiff has failed to present evidence at this point to
warrant granting summary judgment. Adigun v. Express Scripts, Inc., No. CV 216-39, 2017 WL
1199754, at *1 (S.D. Ga. Mar. 30, 2017), reconsideration denied, 2017 WL 5618284 (S.D. Ga.
Nov. 21, 2017). Consequently, the Court should DISMISS as prematurely filed Plaintiff’s
Motion for Summary Judgment.
V.
Motions for Injunctive Relief (Docs. 12, 13)
To be entitled to a preliminary injunction, the movant must show: (1) a substantial
likelihood of ultimate success on the merits; (2) an injunction or protective order is necessary to
prevent irreparable injury; (3) the threatened injury outweighs the harm the injunction or
protective order would inflict on the non-movant; and (4) the injunction or protective order
would not be adverse to the public interest. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,
1225–26 (11th Cir. 2005). In this Circuit, an “injunction is an extraordinary and drastic remedy
not to be granted unless the movant clearly established the ‘burden of persuasion’ as to the four
requisites.” Horton v. City of Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001).
Similarly, a plaintiff requesting a permanent injunction must satisfy the following fourfactor test:
(1) that [the plaintiff] has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to compensate for that
injury; (3) that, considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the public interest would
not be disserved by a permanent injunction.
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Thus, “[t]he standard for a
permanent injunction is essentially the same as for a preliminary injunction except that the
plaintiff must show actual success on the merits instead of a likelihood of success.” Siegel v.
LePore, 234 F.3d 1163, 1213 (11th Cir. 2000) (Carnes, J., dissenting). In either case, an
12
“injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly
established the ‘burden of persuasion’ as to the four requisites.” Horton, 272 at 1326.
If a plaintiff succeeds in making such a showing, then “the court may grant injunctive
relief, but the relief must be no broader than necessary to remedy the constitutional violation.”
Newman v. Alabama, 683 F.2d 1312, 1319 (11th Cir. 1982). Accordingly, where there is a
constitutional violation in the prison context, courts traditionally are reluctant to interfere with
prison administration, unless there is a clear abuse of discretion. See Procunier v. Martinez, 416
U.S. 396, 404–05 (1974) (“Traditionally, federal courts have adopted a broad hands-off attitude
toward problems of prison administration [because] . . . courts are ill equipped to deal with the
increasingly urgent problems of prison administration and reform.”), overruled on other grounds
by Thornburgh v. Abbott, 490 U.S. 401 (1989). In such cases, “[d]eference to prison authorities
is especially appropriate.” Newman, 683 F.2d at 1320–21 (reversing district court’s injunction
requiring release of prisoners on probation because it “involved the court in the operation of the
State’s system of criminal justice to a greater extent than necessary” and a less intrusive
equitable remedy was available).
Plaintiff has not shown he has satisfied the prerequisites in order to be entitled to
injunctive relief at this time. Specifically, at this early stage, Plaintiff has not shown the requisite
likelihood of success on the merits of his claims or that injunctive relief is necessary to prevent
irreparable injury. This is not to say that Plaintiff will not eventually be able to obtain injunctive
relief. Rather, the Court will not interfere at this time on the facts before it. Accordingly, the
Court should DISMISS Plaintiff’s Motions for preliminary injunctive relief.
13
VI.
Leave to Appeal in Forma Pauperis
Should the Court adopt my recommendation that Plaintiff’s claims against Defendants
Allen, Bobbitt, Kilgore, Pineiro, and the Georgia Department of Corrections be dismissed, the
Court should also deny Plaintiff leave to appeal in forma pauperis as to the dismissed claims.6
Though 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. County 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). 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 as to any dismissed claims.
6
A certificate of appealability is not required in this Section 1983 action.
14
CONCLUSION
For the reasons set forth above, I RECOMMEND the Court DISMISS Plaintiff’s claims
against Defendants Allen, Bobbitt, Kilgore, Pineiro, and the Georgia Department of Corrections.
Additionally, the Court should DENY Plaintiff leave to appeal in forma pauperis as to these
claims. The Court should also DISMISS as prematurely filed Plaintiff’s Motion for Summary
Judgment and DISMISS Plaintiff’s Motions for preliminary injunctive relief.
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.
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 Plaintiff.
15
REMAINING CLAIMS AND DEFENDANTS
As stated above, Plaintiff states colorable retaliation, excessive force, and deliberate
indifference claims against Defendants Hutchenson, Fuggitt, Mosley, Williams, and Shoemaker.
Consequently, a copy of Plaintiff’s Amended Complaint, (doc. 4), and a copy of this Order shall
be served upon Defendants Hutchenson, Fuggitt, Mosley, Williams, and Shoemaker 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 defendants by first-class mail and request that defendants
waive formal service of summons. Fed. R. Civ. P. 4(d); Local R. 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 Plaintiff upon oral examination. Fed. R. Civ. P. 30(a)(2). Defendants are
further advised that the Court’s standard 140-day discovery period will commence upon the
filing of the last answer. Local R. 26.1. Defendants shall ensure that all discovery, including
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Plaintiff’s deposition and any other depositions in the case, is completed within that discovery
period.
In the event that Defendants take the deposition of any other person, Defendants are
ordered to comply with the requirements of Federal Rule of Civil Procedure 30. As 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 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 attorney, 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 R. 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.
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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 R. 26.1. Plaintiff does not need the permission of the
Court to begin discovery, and Plaintiff should begin discovery promptly and complete it within
this time period. Local R. 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 R. 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 a defendant. 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 attorney 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 R. 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 ($.50) per page. If Plaintiff seeks copies, he should request them directly
from the Clerk of Court and is advised that the Court will authorize and require the
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collection of fees from his prison trust fund account to pay the cost of the copies at the
aforementioned rate of fifty cents ($.50) per page.
If Plaintiff does not press his case forward, the court may dismiss it for want of
prosecution. Fed. R. Civ. P. 41; Local R. 41.1.
It is Plaintiff’s duty to cooperate fully in any discovery which Defendants may initiate.
Upon no less than five (5) days’ notice of the scheduled deposition date, 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 R. 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 R. 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 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 Defendants’ motion for
summary judgment be supported by affidavit, Plaintiff must file counter-affidavits if he desires
to contest 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 Plaintiff pursuant to Federal Rule of Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this 3rd day of July, 2018.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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