United States District Court, M.D. Georgia, Macon Division
ORDER & RECOMMENDATION
CHARLES H. WEIGLE, Magistrate Judge.
Pro se Plaintiff JOSHUA HUMPHREY, an inmate at Jenkins Corrections Center in Millen, Georgia, has filed a 42 U.S.C. § 1983 complaint (Doc. 1) and a motion to proceed in forma pauperis (Doc. 2).
Based on his submissions, the Court finds Plaintiff is unable to prepay the filing fee. Accordingly, the Court GRANTS his motion to proceed in forma pauperis and waives the initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). Plaintiff is nevertheless obligated to pay the $350.00 filing fee, as is discussed below. The Clerk of Court is directed to send a copy of this Order to the business manager at Plaintiff's place of incarceration.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial screening of a prisoner complaint which "seeks redress from a governmental entity or officer or employee of a governmental entity." Section 1915A(b) requires a federal court to dismiss a prisoner complaint that is: (1) "frivolous, malicious, or fails to state a claim upon which relief may be granted"; or (2) "seeks monetary relief from a defendant who is immune from such relief."
A claim is frivolous when it appears from the face of the complaint that the factual allegations are "clearly baseless" or that the legal theories are "indisputably meritless." Carroll v. Gross , 984 F.2d 392, 393 (11th Cir. 1993). 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 (2007) (noting that "[f]actual allegations must be enough to raise a right to relief above the speculative level, " and that the complaint "must contain something more... than... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action") (internal quotations and citations omitted); see also Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (explaining that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice").
In making the above determinations, all factual allegations in the complaint must be viewed as true. Brown v. Johnson , 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover, "[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Tannenbaum v. United States , 148 F.3d 1262, 1263 (11th Cir. 1998).
In order to state a claim for relief under § 1983, a plaintiff must allege that: (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa County , 50 F.3d 1579, 1581 (11th Cir. 1995). If a litigant cannot satisfy these requirements, or fails to provide factual allegations to support his claim or claims, then the complaint is subject to dismissal. See Chappell v. Rich , 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming the district court's dismissal of a § 1983 complaint because the plaintiffs factual allegations were insufficient to support the alleged constitutional violation). See also 28 U.S.C. § 1915A(b) (dictating that a complaint, or any portion thereof, that does not pass the standard in section 1915A "shall" be dismissed on preliminary review).
Plaintiff alleges he "received a tip" that Lieutenant Griffith called him a snitch and, as a result, he feared for his life. When he asked Defendant Griffith to move him to a different building for safety reasons, Griffith responded that he did "not negotiate with terrorist[s]." (Doc. 1 at 5). Instead of moving him to a different building, Griffith ordered that he be placed in "the SHU." (Doc. 1 at 5). Plaintiff, a Muslim, claims Griffith placed him in the SHU as "a form of religious discrimination and excessive harassment." (Doc. 1 at 5). Plaintiff alleges he has suffered "continuous harassment" from unnamed correctional officers since being placed in the SHU. Plaintiff states that "Warden Head was alerted to this situation and refused to do anything about it." (Doc. 1 at 5).
Construing Plaintiff's complaint liberally, he makes a claim of disparate treatment. "To establish an equal protection claim, a prisoner must demonstrate that (1) he is similarly situated with other prisoners who received' more favorable treatment; and (2) his discriminatory treatment was based on some constitutionally protected interest such as race, " religion, or gender. Jones v. Ray , 279 F.3d 944, 946-47 (11th Cir. 2001) (quoting Damiano v. Fla. Parole & Prob. Comm'n, 785 F.2d 929, 932-33 (11th Cir. 1986)). Plaintiff claims he is treated differently because he is a Muslim and alleges "the existence of purposeful discrimination.'" McClesky v. Kemp , 481 U.S. 279, 292 (1987) (quoting Whitus v. Georgia , 385 U.S. 545, 550 (1967). Specifically, he claims Griffith knows he is a Muslim and "acted with a discriminatory purpose" when he harassed him and placed him in the "SHU." Id. Plaintiff has alleged a sufficient factual basis to allow this claim to go forward against Defendant Griffith.
Plaintiff does not claim Warden Head has harassed or discriminated against him because of his religion. Instead, he just states that "Warden Head was alerted to the situation and refused to do anything about it." (Doc. 1 at 5). A supervisory official, such as Warden Head, is not liable under § 1983 solely on the basis of respondeat superior or vicarious liability. Brown v. Crawford , 906 F.2d 667, 671 (11th Cir. 1990). Instead, there must be an affirmative link between the defendant's action and the alleged constitutional deprivation. Gilmere v. Atlanta , 774 F.2d 1495, 1504 (11th Cir. 1985). A plaintiff must show one of the following: (1) personal participation; (2) "a history of widespread abuse [that] puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so"; (3)"a supervisor's custom or policy [that] results in deliberate indifference to constitutional rights"; or (4) the "facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the ubordinates would act unlawfully and failed to stop them from doing so." Cottone v. Jenne , 326 F.3d 1352, 1360 (11th Cir. 2003) (internal citations and quotations omitted). Plaintiff has not made any such showing.
For this reason, it is RECOMMENDED that Warden Head be DISMISSED from this action.
In summary, Plaintiff's claim against Defendant Griffith shall be allowed to go forward. It is ORDERED that service be made on Defendant Griffith and he file an Answer, or such other response as may be appropriate under Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendant is also reminded of the duty to avoid unnecessary service ...