United States District Court, Middle District of Georgia, Macon Division
ORDER & RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jerrick Atkinson, an inmate currently confined at Macon State Prison in Oglethorpe, Georgia, filed a pro se civil rights complaint seeking relief under 42 U.S.C. § 1983. Plaintiff requests leave to proceed without prepayment of the $350.00 filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). Because Plaintiff’s submissions show that he is currently unable to pre-pay the $350.00 filing fee, his Motion to Proceed in forma pauperis (ECF No. 2) is 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 filing fee using the payment plan as ordered herein.
The undersigned has also conducted a preliminary review of Plaintiff’s Complaint and will allow his Eighth Amendment claim against Officer Brandon Thomas to go forward. It is RECOMMENDED that all other claims and parties be DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A(b)(1).
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 otherwise 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 (2007). 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 [also] do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (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.
The present action arises out an alleged use of excessive force at Macon State Prison (MSP). According to the Complaint (ECF No. 1), Plaintiff arrived at MSP after undergoing shoulder surgery on September 17, 2013. During intake, Officer Carol Fowler directed Plaintiff to remove his shoes, and he apparently refused. Officer Fowler then called the prison’s “CERT Team” for assistance. Officer Brandon Thomas responded and immediately grabbed Plaintiff by the shoulders. Plaintiff then advised Thomas of his recent surgery. Thomas nonetheless “slammed Plaintiff on the floor, ” injuring his surgical wound and causing Plaintiff to suffer “extreme pain.” Plaintiff alleges that he was wearing a shoulder sling, waist chain, and leg irons at the time.
Following this incident, Plaintiff filed a grievance with prison officials and received a formal response notifying him the matter had been forwarded to the “Internal Investigations Unit.” See Ex. C at 2 (ECF No. 1-3). His grievance was closed, and the decision to forward the grievance to the Investigation Unit is not appealable. Id. Plaintiff has now brought this action against Officer Thomas, Officer Fowler, Warden McLaughlin, and Commissioner Brian Owens.
I. Claims Against Officer Thomas
Plaintiff’s allegations, when read in his favor, are sufficient to state an Eighth Amendment claim against Officer Brandon Thomas for excessive force. In his statement of “Legal Claims, ” however, Plaintiff also alleges that Officer Thomas violated his Fourth and Fourteenth Amendment rights by taking away his property (presumably his shoes) without fair procedures.
Plaintiff’s reliance on the Fourth Amendment in this case is misplaced. Prisoners have no Fourth Amendment protection against unreasonable seizure while incarcerated. Hudson v. Palmer, 468 U.S. 517, 525–26 (1984).
The Due Process Clause of the Fourteenth Amendment is likewise not offended when a prison official deprives an inmate of his personal property if the State makes available a meaningful post-deprivation remedy. Id. at 533. The State of Georgia provides Plaintiff an adequate post-deprivation remedy for the loss of his property. See O.C.G.A. §§ 51-10-1 through 51-10-6; see also Lindsey v. Storey, 936 F.2d 554, 561 (11th Cir. 1991) (finding no due process violation because Georgia “has provided an adequate post deprivation remedy” in O.C.G.A. § 51-10-1). Thus, even if Officer Thomas did wrongfully seize Plaintiff’s shoes, the seizure is not grounds for a due process claim.
It is accordingly RECOMMENDED that Plaintiff’s Fourth and Fourteenth Amendment claims against Officer Thomas be ...