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Delgiudice v. Evans

United States District Court, M.D. Georgia, Macon Division

September 3, 2014

NELSON DELGIUDICE, JR, Plaintiff
v.
PATRICIA EVANS Defendant.

REPORT AND RECOMMENDATION

STEPHEN HYLES, Magistrate Judge.

Presently pending before the Court are Plaintiff's motions to amend (ECF Nos. 49, 50, 53, 58) and Defendant's motion to dismiss (ECF No. 55). It is recommended that Plaintiff's motions to amend be granted solely as explained below and Defendant's motion to dismiss be granted.

BACKGROUND

This action arises out of an alleged "assault" on Plaintiff, a Hispanic prisoner. According to the Complaint, Officer Jarvis Primus ran into Plaintiff's cell, "giving no orders or commands, " and "struck Plaintiff on the left side of his face, " without cause, "knocking [him] out cold." (Comp. 6.) Officer Primus then continued to assault Plaintiff even though he was unconscious. ( Id. ) As a result of this attack, Plaintiff suffered severe and disfiguring injuries to his face and head. Plaintiff received medical treatment and was later taken to the segregation unit.

Plaintiff alleges that Officer Larry Milner attempted to cover-up the unlawful conduct (and protect his co-worker from "liability") by filing a "fabricated and fraudulent" disciplinary report. (Compl. 6). According to the Complaint, two disciplinary reports were filed after the incident. In the first, Defendant Milner states that Plaintiff attempted to cut him with a sharp object. ( Id. ) Plaintiff claims, on the other hand, that he "never even came across [Milner] on the day of the incident." ( Id. ) In the second report, another officer accused Plaintiff of possessing a weapon and ammunition. Apparently, this report was later "dismissed, " and no weapon was ever confiscated or produced as evidence against Plaintiff. (Compl. 7.) A response to Plaintiff's grievance about the incident still concluded that Plaintiff "assaulted and stabbed" a CERT team officer and "was subdued using appropriate force." (Pl.'s Supplement 2.) Plaintiff claims that the events described in the disciplinary reports and grievance response never occurred. All of Plaintiff's administrative appeals were denied.

Officer Milner's report evidently led to a disciplinary hearing, wherein Plaintiff was given an opportunity to deny all accusations and explain "why he wouldn't commit such foolish and suicidal" acts. (Pl.'s Supplement 3.) The hearing officer, Defendant Patricia Evans, nonetheless found Plaintiff guilty of "possession of [a] weapon" and "attempting to use [a] weapon to cause bodily injury." (Compl. 7; Pl.'s Supplement 3.) The written statement issued thereafter stated only that Plaintiff was found guilty of the charges "based on the factual statement" (presumably of an accusing officer. (Compl. 7, Pl.'s Supplement 3.) Plaintiff later appealed the decision to the Warden, and the appeal was denied.

After the hearing, criminal charges were also filed. (Compl. 7.) The Complaint alleges that Plaintiff was made to appear before a court in Hancock County, at which time he pled "not guilty" to charges of "aggravated assault." Plaintiff was charged with assaulting both Defendants Milner and Primus, though, according to Plaintiff, no disciplinary report ever suggested that he assaulted Defendant Primus, and Primus never filed a report of his own. (Compl. 9.) These criminal charges have now been dead docketed in the Superior Court of Hancock County. (Def.'s Supplemental Status Report Ex. 1, ECF No. 44-1.)

Although Plaintiff originally brought claims against Officers Primus and Milner, those claims were dismissed on preliminary review. The only currently pending claims are against Defendant Patricia Evans in her individual capacity for failure to provide due process before putting Plaintiff in the segregation unit for more than twenty-two months. Plaintiff seeks compensatory and punitive damages against Defendant Evans. It is recommended that these claims be dismissed for failure to state a claim as explained below. Plaintiff also seeks to amend to add claims against Officer Jarvis Primus, Officer Milner, Celeste Young, Mr. Upton, and Shevondah Field. Plaintiff's motions to amend also contain various other claims which he seeks to add which are not connected to a particular defendant. It is recommended that Plaintiff be allowed to amend only as against Defendant Officer Jarvis Primus because justice so requires under the circumstances of this case.

DISCUSSION

I. Motion to Dismiss

A. Standard of Review

When considering a 12(b)(6) motion to dismiss, the Court must accept as true all facts set forth in the plaintiff's complaint and limit its consideration to the pleadings and exhibits attached thereto. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee Toons, Inc. , 555 F.3d 949, 959 (11th Cir. 2009). "To survive a motion to dismiss, a complaint must contain 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 Twombly , 550 U.S. at 570). The complaint must include sufficient factual allegations "to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555. "[A] formulaic recitation of the elements of a cause of action will not do[.]" Id. Although the complaint must contain factual allegations that "raise a reasonable expectation that discovery will reveal evidence of" the plaintiff's claims, id. at 556, "Rule 12(b)6) does not permit dismissal of a well-pleaded complaint simply because it strikes a savvy judge that actual proof of those facts is improbable, '" Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).

B. Defendant Evans' Motion to Dismiss

Plaintiff sues Defendant Patricia Evans in her individual capacity for failure to provide due process during a disciplinary hearing that resulted in Plaintiff being transferred to the special management unit (SMU). Plaintiff alleges that Defendant Evans was the hearing officer during the disciplinary hearing and that such hearing was generally unconstitutional and not held fairly. He specifically asserts that Defendant Evans failed to present or withheld exculpatory evidence, withheld "numerous witness written testimonies that showed Plaintiff's innocence[, ]" and "failed to give an adequate ...


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