United States District Court, Middle District of Georgia, Macon Division
ORDER & RECOMMENDATION
CHARLES H. WEIGLE UNITED STATES MAGISTRATE JUDGE
Plaintiff Vinson Edward Whatley, an inmate confined at Central State Prison in Macon, Georgia, has filed a pro se civil rights complaint in this Court seeking relief under 42 U.S.C. § 1983. Plaintiff also requests leave to proceed without prepayment of the $350.00 filing fee and has moved for the appointment of counsel counsel.
I. Motion to Proceed in forma pauperis
Plaintiff’s submissions show that he is currently unable to pre-pay the Court’s $350.00 filing fee. His Motion to Proceed in forma pauperis (Doc. 2) is thus GRANTED. See 28 U.S.C. § 1915(b). This does not mean that the filing fee is waived, however. Plaintiff is still required to pay the full amount of the $350.00 filing fee using the payment plan as ordered herein.
II. Preliminary Review
Because Plaintiff will not be required to pre-pay any portion of the filing fee, the undersigned has also now conducted a preliminary review of Plaintiff’s Complaint, as required by 28 U.S.C. § 1915A(a), and will allow his claims against Sergeant Brenden Brown to go forward. It is RECOMMENDED, however, that all other claims and parties, as discussed herein, be DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
A. Standard of Review
When conducting a preliminary screening pursuant to 28 U.S.C. § 1915A(a), the district court must accept all factual allegations in the complaint as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings, like the one in this case, are also “held to a less stringent standard than pleadings drafted by attorneys” and must be “liberally construed” by the court. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, a prisoner’s pleading is still subject to dismissal prior to service if the court finds that the complaint –when viewed liberally and in the light most favorable to the plaintiff – is frivolous or malicious, seeks relief from an immune defendant, or fails to state a claim. See 28 U.S.C. § 1915A(b).
A complaint fails to state a claim when it does not include “enough factual matter (taken as true)” to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To state a cognizable claim, the allegations in the complaint must also do more than “merely create a suspicion [of] a legally cognizable right of action.” Id. at 555. “Threadbare recitals of the elements of cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To survive preliminary review, a complaint must “raise the right to relief above the speculative level” by alleging facts which create “a reasonable expectation” that discovery will reveal the evidence necessary to prove a claim. See Twombly, 550 U.S. at 555-556.
B. Plaintiff’s Claims
The present action arises out of an alleged use of excessive force at Central State Prison in Macon, Georgia. The Complaint alleges that a corrections officer, Defendant Brenden Brown, “intentionally and violently” shoved Plaintiff’s head against a wall, causing Plaintiff to temporarily lose consciousness. Defendant Brown then allegedly “slammed” Plaintiff to the ground and repeatedly “shoved” his head into the concrete floor. Plaintiff suffered “visible” injuries to the back of his head. He later filed a grievance but received no response from Deputy Warden Mizell Davis. Warden Belinda Davis likewise failed to respond to a letter from Plaintiff.
1. Claims against Sergeant Brown
Plaintiff’s allegations, when liberally construed and read in his favor, are sufficient to state an Eighth Amendment claim against Defendant Brenden Brown. It is thus ORDERED that service be made on this defendant and that he file an Answer, or such other response as may be appropriate under Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendant Brown is also reminded of his duty to avoid ...