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Flowers v. Shaw

United States District Court, S.D. Georgia, Brunswick Division

December 1, 2014

ANTHONY FLOWERS, Plaintiff,
v.
Mayor HERB SHAW; RICKY A. REDDISH, SR.; DON DARDEN; NICK HARRIS; BOBBY TOWNSEND; RAY HOUSE; GENEVA D. NICHOLS; CITY OF JESUP POLICE DEPARTMENT; Lt. MARK LANE; Sgt. JONATHAN McCULLOUGH; WILLIAM CHITTY; CANDACE PHILLIPS; and TY BROOKS, State Trooper, Defendants

Anthony Flowers, Plaintiff, Pro se, Wrightsville, GA.

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

JAMES E. GRAHAM, UNITED STATES MAGISTRATE JUDGE.

Plaintiff, who is currently incarcerated at Johnson State Prison in Wrightsville, Georgia, filed a cause of action pursuant to 42 U.S.C. § 1983. A prisoner proceeding in a civil action against officers or employees of government entities must comply with the mandates of the Prison Litigation Reform Act, 28 U.S.C. § § 1915 & 1915A. In determining compliance, the court shall be guided by the longstanding principle that pro se pleadings are entitled to liberal construction. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Walker v. Dugger, 860 F.2d 1010, 1011 (11th Cir. 1988).

28 U.S.C. § 1915A requires a district court to screen the complaint for cognizable claims before or as soon as possible after docketing. The court must dismiss the complaint or any portion of the complaint that is frivolous, malicious, fails to state a claim upon which relief may granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) and (2).

">In Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997), the Eleventh Circuit interpreted the language contained in 28 U.S.C. § 1915(e)(2)(B)(ii), which is nearly identical to that contained in the screening provisions at § 1915A(b). As the language of § 1915(e)(2)(B)(ii) closely tracks the language of Federal Rule of Civil Procedure 12(b)(6), the court held that the same standards for determining whether to dismiss for failure to state a claim under Rule 12(b)(6) should be applied to prisoner complaints filed pursuant to § 1915(e)(2)(B)(ii). Mitchell, 112 F.3d at 1490. While the court in Mitchell interpreted § 1915(e), its interpretation guides this court in applying the identical language of § 1915A.

Plaintiff asserts that Defendants Lane, Chitty, McCullough, and Phillips, all of whom are City of Jesup police officers, and Defendant Brooks, a Georgia State trooper, breeched his residence without announcing their presence in an attempt to execute an arrest warrant on Plaintiff. Plaintiff alleges that he met the officers with both of his hands and arm extended over his head, but Defendant Chitty began firing an assault rifle at Plaintiff. Plaintiff contends that he suffered gunshot wounds to his chest, stomach, and right arm, which required extensive medical treatment. Plaintiff also names as Defendants: City Commissioners Reddish, Darden, Harris, Townsend, House, and Nichols; Jesup Mayor Shaw; and the City of Jesup Police Department.

A plaintiff must set forth " a short and plain statement of the claim showing that [he] is entitled to relief." Fed.R.Civ.P. 8(a)(2). In order to state a claim for relief under 42 U.S.C. § 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 Cnty., 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. Plaintiff fails to make any factual allegations against the City Commissioners or the Mayor. Plaintiff's claims against Defendants Reddish, Darden, Harris, Townsend, House, Nichols, and Shaw should be dismissed.

Plaintiff cannot sustain a cause of action against the City of Jesup Police Department. A governmental entity " may be held liable for the actions of its employees when the entity's " official policy causes a constitutional violation." Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). A plaintiff " must identify a . . . policy or custom [which] caused his injury." Id. A governmental entity is subject to liability under section 1983 " when execution of a government's policy or custom . . . inflicts the injury." Mercado v. City of Orlando, 407 F.3d 1152, 1161 (11th Cir. 2005). Plaintiff has failed to assert that the City of Jesup Police Department had any policy or custom in place or that the policy or custom led to any injury, and his claims against the City of Jesup Police Department should be dismissed . Likewise, Plaintiff's claims against Defendants Reddish, Darden, Harris, Townsend, House, Nichols, and Shaw, as the policymakers for the City of Jesup, should be dismissed for this reason, as well.

In addition, the Supreme Court has held:

that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). According to the Heck Court, " when a state prisoner seeks damages in a [civil rights] suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." Id. at 487. If this is the case, the plaintiff's complaint " must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. A district court must determine whether " plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Id. (emphasis in original). To have success on his putative false arrest claim, Plaintiff's conviction would have to be overturned, which has not occurred. To the extent Plaintiff sets forth a claim that his arrest was improper, such a claim should be dismissed.

However, it is a well-settled principle that " the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment" in violation of the Fourth Amendment. Saunders v. Duke, 766 F.3d 1262, 1264 (11th Cir. 2014). It is not necessary that a correctional officer actually participate in the use of excessive force in order to be held liable under section 1983. Rather, " an officer who is present at the scene and who fails to take reasonable steps to protect [a] victim of the " use of excessive force can be held liable for his nonfeasance." See Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (citing Fundiller v. City of Cooper, 777 F.2d 1436, 1442 (11th Cir. 1985)).

These allegations, when read in a light most favorable to the Plaintiff, arguably state colorable claims for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A against Defendants Lane, McCullough, Chitty, Phillips, and Brooks for alleged violations of the Fourth Amendment. A copy of Plaintiff's Complaint and a copy of this Order shall be served upon Defendants Lane, McCullough, Chitty, Phillips, and Brooks by the United States Marshal without prepayment of cost. If any Defendant elects to file a Waiver of Reply, then he ...


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