United States District Court, S.D. Georgia, Statesboro Division
B. AVANT EDENFIELD, District Judge.
Before the Court are three Motions to Dismiss: Mark Smith's Motion to Dismiss, ECF No. 66, Terry Calhoun's and Jermaine Calhoun's Motion to Dismiss, ECF No. 70, and Wayne Cook's Partial Motion to Dismiss, ECF no. 76. For the reasons set forth below, the Court DENIES IN PART and GRANTS IN PART the motions.
The facts here are the same as in the Court's previous order. See ECF No. 68 at 1. Darius Green filed this action against various prison officials, arguing that they "condoned" Darryl Ricard's sexual assault of Green. Id. The complaint alleges several counts against the defendants: first, that the defendants violated Green's constitutional rights under the Eighth and Fourteenth Amendment (Count I); second, that those defendants who were supervisors (including Smith) 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 6:14-cv-103-BAE-GRS, ECF No. 1 at 18-24.
II. SMITH'S MOTION TO DISMISS
A. Service of Process
Smith first argues that Green failed to effect proper service of process upon him. ECF No. 66-1 at 2. In support of this argument, Smith submitted two identical affidavits, one of which he signed, claiming that he did not receive the summons itself. See ECF Nos. 66-1, 69.
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, Smith acknowledges that he received the complaint. See ECF No. 66-1 at 3. His argument is that he received only the complaint and not the summons. But the server's sworn testimony belies his claim. After Smith 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. ECF No. 60 at 1. The return also displays Smith's signature, see id, though its presence is not itself dispositive. Although not entitled "affidavit, " the Court gives this return the same weight as if it had been because it complies with the requirements of 28 U.S.C. § 1746. See Udoinyion v. The Guardian Sec., 440 F.Appx. 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 an affidavit under Rule 4(1)(1). Therefore, the Court finds that Green properly served Smith.
B. Rule 12(b)(6)
Smith also argues 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 recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original).
In Iqbal, the Supreme Court further explained the required level of specificity:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for ...