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Diamond v. Allen

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

October 28, 2014

ASHLEY ALTON DIAMOND, Plaintiff,
v.
Warden MARTY ALLEN, et al., Defendants.

ORDER & RECOMMENDATION

THOMAS Q. LANGSTAFF, Magistrate Judge.

Plaintiff ASHLEY ALTON DIAMOND, an inmate currently confined at Valdosta State Prison (VSP) in Valdosta Georgia, filed this pro se civil rights action seeking relief under 42 U.S.C. § 1983. The undersigned subsequently ordered Plaintiff to recast his complaint and supplement his factual allegations. Plaintiff has now complied with both orders, and after conducting a preliminary review of Plaintiff's Recast Complaint (Doc. 9) and Supplement (Doc. 11), the undersigned finds that Plaintiff's allegations are sufficient to go forward with claims against Warden Marty Allen and Director Dave McCracken. It is RECOMMENDED, however, that all other claims and parties, as discussed herein, be DISMISSED, under 28 U.S.C. § 1915A(b)(1), for failure to state a claim.

I. Standard of Review, 28 U.S.C. § 1915A(a)

Because Plaintiff is a prisoner "seeking redress from a governmental entity or [an] officer or employee of a governmental entity, " the district court is required to conduct a preliminary screening of his Complaint. See 28 U.S.C. § 1915A(a). In so doing, the 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). 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 allege facts sufficient to create "a reasonable expectation" that discovery will reveal the evidence necessary to prove a claim. See Twombly, 550 U.S. at 555-556.

II. Plaintiff's Claims

The present action arises out of Plaintiff's confinement at Valdosta State Prison. In his Recast Complaint, Plaintiff alleges that officials at VSP have failed (and continue to fail) to protect him from sexual harassment and assault. Plaintiff, a transgender inmate, states that he has endured sexual harassment, sexual assaults, and violent attacks at the prison since January 9, 2014. Plaintiff has apparently made "many attempts" to get help from prison officials, including having specific discussions with the "Sexual Assault Response Team" leader, Dave McCraken, and Warden Marty Allen. These officials allegedly took no action in response to Plaintiff's complaints; Warden Allen merely suggested that Plaintiff request "protective custody." Plaintiff also suggests that Warden Allen actually contributed to his problems, by "setting the tone for inmates and staff to ridicule" him, and that Allen made "rude and offensive statements" during inspections. Apparently, at some point, Plaintiff did seek, and was denied, protective custody. Plaintiff, as a result, remained in confinement with (and was "enslaved" by) gang members who retaliated against him for "snitching." With allegedly no other options, Plaintiff sought protection from another inmate, who "claimed" him, held him captive in his cell for days at a time, and "sexually abused" him multiple times. The Complaint states that Plaintiff suffers from "Bipolar Disorder, " "PTSD, " and "Gender Identity Disorder, " and he now claims to be "suicidal, " resorting to "self-mutilation, " because of the conditions of his confinement.

Plaintiff filed the present lawsuit against Valdosta State Prison, the Georgia Department of Corrections, Commissioner Brian Owens, [1] Warden Marty Allen, Deputy Warden Shawn Emmons, Mental Health Director Dave McCraken, Nurse Carver, and Dr. Roman for alleged violations of the Eighth and Fourteenth Amendments, the Americans with Disabilities Act ("ADA") and the Prison Rape Elimination Act ("PREA").

A. Eighth Amendment Claims

Plaintiff's allegations, when liberally construed and read in his favor, are sufficient to allow him to go forward with Eighth Amendment claims against Dave McCracken and Warden Marty Allen. For the reasons stated below, however, Plaintiff should not be permitted to go forward with any Eighth Amendment claims against Valdosta State Prison, the Georgia Department of Corrections, Commissioner Brian Owens, Deputy Warden Shawn Emmons, Nurse Carter, or Dr. Roman:

1. Valdosta State Prison & the Georgia Department of Corrections

Neither Valdosta State Prison nor the Georgia Department of Corrections are proper parties for a § 1983 claim. The Eleventh Amendment bars suits directly against a state or its agencies, regardless of the nature of relief sought. Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989)); Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). It has also been found that a state prison is not an entity capable of being sued under § 1983, see Ga. Insurers Insolvency Pool v. Elbert Cnty., 258 Ga. 317, 318, 368 S.E.2d 500 (1988); Brinson v. Coastal State Prison, No. CV408-242, 2009 WL 890574, at *2 (S.D. Ga. Apr.1, 2009) ("[a state prison]... is not an entity that is subject to suit under § 1983"). It is accordingly RECOMMENDED that any constitutional claims against Valdosta State Prison and the Georgia Department of Corrections be DISMISSED.

2. Commissioner Brian Owens & Deputy Warden Shawn Emmons

The allegations in Plaintiff's Complaint also fail to state Eighth Amendment claims against Commissioner Owens and Deputy Warden Emmons. Nothing in the Complaint suggests that these defendants were personally involved in the events giving rise to this lawsuit. Plaintiff's claims against Owens and Emmons appear to arise only out of their general responsibility "for the overall operation" of the prison and alleged receipt of Plaintiff's grievances. These defendants, however, "are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). A prison official's mere failure to personally respond to a letter or grievance from a prisoner also does not give rise to § 1983 liability. See Ware v. Owens, No. CV612-056, 2012 WL 5385208, at * 2 (S.D. Ga. Sept. 28, 2012) (finding that "failure to respond to an inmate's letters does not result in a violation of that inmate's constitutional rights"); Shehee v. Luttrell, 199 ...


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