United States District Court, S.D. Georgia, Statesboro Division
D. AVANT EDENFIELD, District Judge.
Before the Court are three motions to dismiss. The first was filed by Cynthia Calhoun, Jettie Calhoun, Shawn Calhoun, Christopher Gay, Basahan McIntosh, and Brad Westbcrry. ECF No. 39. The second was filed by John Jordan and Charles Calhoun. ECF No. 41. The third was filed by Benjamin Mourad. ECF No. 43. These motions raise the same points of law and incorporate each other by reference; therefore, the Court will evaluate them together. The following order applies only to those defendants mentioned above (collectively, "Defendants").
For the reasons set forth below, the Court DENIES IN PART and GRANTS IN PART the motions to dismiss.
Darius Green was sexually assaulted while incarcerated in Rogers State Prison. 6:14-cv-103-BAE-GRS, ECF No. 1 at 2 (hereinafter "the Complaint"). The attacker was a fellow prisoner, Ricard. Id. at 3. The Defendants placed Green in a cell with Ricard, and they "knew Ricard would sexually assault Green." See id. at 3-14.
Green filed this action against various prison officials, arguing that they "condoned" the assault. Id. at 3-14. The Complaint alleges several counts against the Defendants: first, that the Defendants violated Green's constitutional rights under the Eighth and Fourteenth Amendment (Count 1); second, that those defendants who were supervisors are liable for condoning the assault (Count II); third, that the Defendants conspired to harm Green (Count III); and, fourth, that the Defendants failed to intervene to prevent the assault (Count IV). See id. at 18-24.
A. Service of Process
The Defendants first argue that Green failed to effect proper service of process upon them. ECF Nos. 39-1 at 3-4; 41-1 at 2-3. In support of this argument, each defendant submitted an affidavit, claiming that he or she received a copy of the complaint but not the summons itself. See ECF Nos. 39-2 (Jettie Calhoun); 39-3 (Shaun Calhoun); 39-4 (Gay); 39-5 (McIntosh); 39-6 (Westberry); 39-7 (Cynthia Calhoun); 41-2 (Jordan); 41-3 (Charles Calhoun); 43-2 (Mourad).
A defendant must be provided with a summons and a copy of the complaint. See Fed.R.Civ.P. 4(c)(1). "Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit." Fed.R.Civ.P. 4(1)(1).
Here, the Defendants acknowledge that they received the complaint. See ECF Nos. 39-1 at 4; 41-1 at 3; 43-1 at 3. Their argument is that they received only the complaint and not the summons. But the servers' sworn testimony belies these claims. After each of the Defendants was served, the server provided the Court a "return of service" that includes a sworn statement by the server that he provided both the complaint and the summons. See 6:14-cv-103-BAE-GRS, ECF Nos. 7 (Charles Calhoun); 8 (Cynthia Calhoun); 9 (McIntosh); 10 (Gay); 11 (Jordan); 12 (Jettie Calhoun); 13 (Shaun Calhoun); 15 (Mourad); 16 (Westberry). The returns also display the Defendants' signatures, see id, though their presence is not itself diapositive. Although not entitled "affidavit, " the Court gives these returns the same weight as if they were because they complied with the requirements of 28 U.S.C. § 1746. See Udoinyion v. The Guardian Sec., 440 F.App'x 731, 735 (11th Cir. 2011) ("An unsworn written declaration may be used as evidence if the writer includes and signs a statement such as, I declare under penalty of perjury that the foregoing is true and correct.'" (citing 28 U.S.C. § 1746)).
Under Rule 4(1)(1), service may be proved "by the server's affidavit." Fed.R.Civ.P. 4(1)(1). The Court finds that the server's sworn statements have sufficient language to be considered affidavits under Rule 4(1)(1). Therefore, the Court finds that Green properly served the Defendants.
B. Rule 12(b)(6)
The bulk of the Defendants' Motions to Dismiss concerns their argument that Green has failed to state a claim for relief. Under Rule 12(b)(6), a pleading that fails to state a claim for relief must be dismissed. See Bell AtL Corp. v. Twombly, 550 U.S. 544, 570 (2007).
1. Standard of Review
In considering a Federal Rule of Civil Procedure 12(b)(6) motion, all facts in the plaintiffs complaint "are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto." GSW, Inc. v. Long Cnty., Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). The Court, however, is not limited to the four corners of the pleadings; rather a proper review of a motion to dismiss "requires the reviewing court to draw on its judicial experience and common sense." See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
A complaint will not be dismissed so long as it contains factual allegations sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678 (claim must have "facial plausibility"); Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). Yet, "a plaintiffs obligation to provide grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic ...