Marshall v. G.D.C.I. Food Service, et. al.
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint for failure to state a claim and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. It is also RECOM MENDED that the Court DENY Plaintiff leave to appeal in forma pauperis. 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 12/19/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/5/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
JAMMIE L. MARSHALL,
CIVIL ACTION NO.: 6:17-cv-117
G.D.C.I. FOOD SERVICE,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Johnson State Prison in Wrightsville, Georgia, filed a
Complaint pursuant to 42 U.S.C. § 1983 contesting events allegedly occurring in Reidsville,
Georgia. (Doc. 1.) Plaintiff also filed a Motion for Leave to Proceed in Forma Pauperis.
(Doc. 3.) For the reasons which follow, the Court DENIES Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis.
For these same reasons, I RECOMMEND the Court
DISMISS Plaintiff’s Complaint for failure to state a claim and DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate judgment of dismissal.
RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.
In his Complaint, Plaintiff asserts he was on detail at the canning plant in Reidsville,
Georgia. 1 (Doc. 1, p. 5.) Plaintiff states he was beginning to pull the greens from the slow
conveyor belt and place them on the speed belt when the shroud covering the gear and chain
caught the tip of his glove because the shroud was not secured properly. Plaintiff maintains his
The Court presumes the canning plant is part of the Georgia Department of Corrections’ operations in
hand was pulled through this area, crushing his hand and extensively damaging it. (Id.) Plaintiff
asserts Defendant is personally liable due to the negligent manner in which he was injured. (Id.)
Plaintiff also asserts a doctor took a longer than is customary to review his records. (Id. at p. 8.)
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 or malicious, or fails
to state a claim upon which relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
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). 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.”).
Dismissal of Claims Against G.D.C.I.
In order to state a claim for relief under Section 1983, a plaintiff must satisfy two
elements. First, a plaintiff must allege that an act or omission deprived him “of some right,
privilege, or immunity secured by the Constitution or laws of the United States.” Hale v.
Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act
or omission was committed by “a person acting under color of state law.” Id. Federal Rule of
Civil Procedure 8(a)(2) requires a pleading to contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a plaintiff need not
provide detailed factual allegations, a complaint is insufficient if it offers no more than “labels
and conclusions,” or “an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal,
556 U.S. at 678 (citations omitted).
Here, Plaintiff fails to plausibly state a claim that G.D.C.I. should be held liable for his
injuries. At most, Plaintiff alleges that G.D.C.I was negligent in its operations. However,
“Section 1983 simply cannot be used to bring a negligence-based tort suit in federal court, and
even read most charitably, [Plaintiff’s] allegation” that part of a machine was not secured
“sounds in negligence rather than the ‘criminal recklessness’ required to support a § 1983
claim.” Hopes v. Correct Health, No. CV417-079, 2017 WL 2805108, at *1 (S.D. Ga. June 28,
2017) (quoting Farmer v. Brennan, 511 U.S. 825, 836–40 (1994)), report and recommendation
adopted, sub nom., Hopes v. Wilcher, No. CV417-79, 2017 WL 3013263 (S.D. Ga. July 14,
Additional grounds support dismissal of Plaintiff’s claims against Defendant G.D.C.I.
Plaintiff makes no indication whether G.D.C.I. is a private corporation or whether this named
Defendant is an arm of the Georgia Department of Corrections. In the latter instance, this
Defendant would not be subject to suit under Section 1983 based on Eleventh Amendment
immunity principles. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989). “The
Eleventh Amendment insulates a state from suit brought by individuals in federal court unless
the state either consents to suit or waives its Eleventh Amendment immunity.” Stevens v. Gay,
864 F.2d 113, 114 (11th Cir. 1989) (footnote omitted) (citing Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 98–100 (1984)). A lawsuit against a state agency or employee in its
official capacity is no different from a suit against a state itself; such a defendant is immune.
Will, 491 U.S. at 71. In enacting Section 1983, Congress did not intend to abrogate “wellestablished immunities or defenses” under the common law or the Eleventh Amendment. Id. at
67. Arms or agencies of the state, such as the Department of Corrections, are therefore immune
from suit. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam ) (“There can be no
doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh
Amendment, unless [Georgia] has consented to the filing of such a suit.”); Edelman v. Jordan,
415 U.S. 651, 663 (1974); Pugh v. Balish, 564 F. App’x 1010, 1013 (11th Cir. 2014) (“In
addition, the Eleventh Amendment bars [plaintiff’s] claims against the [superior court judge],
since [plaintiff] is suing a state official, in federal court, for damages resulting from actions taken
by the judge in his official capacity.”); Stevens, 864 F.2d at 115 (Georgia Department of
Corrections is barred from suit by Eleventh Amendment).
Even if G.D.C.I is a private entity and pretermitting the question of whether G.D.C.I
could be considered a person acting under color of state law 2, Section 1983 liability must be
According to Federal Rule of Civil Procedure 17(b)(3), the general rule is that the “capacity to sue or be
sued is determined . . . by the law of the state where the court is located. . . .” Accordingly, in this case,
Georgia law controls. The Georgia Supreme Court has explained that: “[i]n every suit there must be a
legal entity as the real plaintiff and the real defendant. This state recognizes only three classes as legal
based on something more than a defendant’s supervisory position or a theory of respondeat
superior or vicarious liability. 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). Congress did not intend
to create liability under § 1983 unless action pursuant to an official policy or custom caused a
constitutional tort. Monell v. Dep’t of Soc. Servs., 436 U.S 658, 691 (1978). Although Monell
involved municipal corporations, the Eleventh Circuit Court of Appeals has extended Monell’ s
holding to private corporations. Harvey v. Harvey, 949 F.2d 1127, 1129–30 (11th Cir. 1992).
However, an entity such as G.D.C.I. cannot be held liable under Section 1983 simply because it
employs a tortfeasor. Monell, 436 U.S. at 691.
Plaintiff ostensibly seeks to hold Defendant G.D.C.I. liable solely based on its perceived
corporate role at a penal institution or system. However, Plaintiff fails to present any facts
indicating G.D.C.I. had any policy or custom in place which resulted in the violation of
Plaintiff’s constitutional rights.
In fact, Plaintiff fails to make even conclusory allegations
indicating that his constitutional rights have been violated or that G.D.C.I. should be held
responsible for any violation. Accordingly, the Court should DISMISS Plaintiff’s claims against
Defendant G.D.C.I. for these additional reasons.
Plaintiff’s Eighth Amendment Claims
Plaintiff’s allegation that a doctor took an unreasonable amount of time to review his
records perhaps implicates the Eighth Amendment. The Eighth Amendment’s proscription
against cruel and unusual punishment imposes a constitutional duty upon a prison official to take
entities, namely: (1) natural persons; (2) an artificial person (a corporation); and (3) such quasi-artificial
persons as the law recognizes as being capable to sue.” Ga. Insurers Insolvency Pool v. Elbert Cty., 368
S.E.2d 500, 502 (Ga. 1988) (quotation omitted). If G.D.C.I. is a corporation and thus, subject to suit
under Georgia law, it cannot be held liable based on respondeat superior principles, for the reasons set
reasonable measures to guarantee the safety of inmates. The standard for cruel and unusual
punishment, 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 v. Brennan, 511 U.S. 825, 828 (1994). 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).
In order to prove a 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 Cty., 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). 3
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, 510 F.3d at 1327, with
“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). Additionally, a defendant who “delays necessary treatment for non-medical reasons”
or “knowingly interfere[s] with a physician’s prescribed course of treatment” may exhibit
deliberate indifference. Id. (citations omitted). In instances where a deliberate indifference
claim turns on a delay in treatment rather than the type of medical care received, a court
considers “the reason for the delay and the nature of the medical need.” Farrow v. West, 320
F.3d 1235, 1246 (11th Cir. 2003) (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.
While Plaintiff’s injured hand is a condition constituting a serious medical need, Plaintiff
simply fails to make sufficient factual allegations in his Complaint that any individual should be
held liable for the alleged violations of Plaintiff’s constitutional rights. Instead, Plaintiff makes
conclusory statements that a doctor took an unreasonable time to review Plaintiff’s medical
records. An unidentified amount of delay in the review of medical records without more is not
sufficient to implicate the Eighth Amendment.
Additionally, conclusory allegations are
insufficient bases for liability. Furthermore, Plaintiff does not name the doctor as a defendant in
this case, and he does not explain how G.D.C.I. could be held liable for the doctor’s delay in
treatment. Additionally, as explained above, Defendant G.D.C.I. would be immune from suit if
Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011). In Melton, 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 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 the published Melton case, which is a published decision, this Court will apply the “more than mere
it is a state entity, and, regardless of its status, it cannot be held liable under Section 1983 under a
theory of respondeat superior or vicarious liability.
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, 393 F. App’x at 678. 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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
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. Accordingly, the
Court should DISMISS Plaintiff’s putative Eighth Amendment claims, which he levied against
an unnamed entity and do not rise to the level of establishing an Eighth Amendment violation.
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.
A certificate of appealability is not required in this Section 1983 action.
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.
For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Leave to Proceed in
Forma Pauperis. I RECOMMEND the Court DISMISS Plaintiff’s Complaint for failure to
state a claim and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate
judgment of dismissal. Additionally, I RECOMMEND the Court DENY Plaintiff leave to
appeal in forma pauperis.
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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 5th day of December,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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