United States District Court, M.D. Georgia, Macon Division
TREVONTE EDWARDS, Plaintiff.
Officer CAMERON BROWN and Officer BOWMAN, Defendants.
STEPHEN HYLES, Magistrate Judge.
Plaintiff Trevonte Edwards, currently an inmate at Georgia State Prison ("GSP"), has filed a pro se 42 U.S.C. § 1983 lawsuit. (ECF No. 1.) Plaintiff has also filed a motion to proceed in forma pauperis and a request for appointment of counsel. (ECF Nos. 2, 3.)
Based on Plaintiff's financial information, the Court finds that Plaintiff is unable to prepay the $350.00 filing fee. Accordingly, the Court GRANTS Plaintiff's 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 required to pay the full filing fee, as is discussed below. The Clerk of Court is directed to send a copy of this Order to the business manager of GSP.
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 that "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 section 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 in support of 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 section 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 complains about an incident that occurred during his former confinement at Hancock State Prison ("HSP"). He sues Defendant HSP Officers Brown and Bowman for allegedly failing to intervene when Plaintiff was physically assaulted by his roommate on February 16, 2015. Plaintiff states that he screamed for help and the Defendants came to the cell and watched the assault without taking any action. Compl. 5, ECF No. 1. The Defendants then allegedly left the scene and returned twice while the assault continued. Id . As the Defendant Officers watched the fight, Bowman allegedly stated, "that's good for his ass[.] [Plaintiff] need[ed] to get beat up." Id . According to Plaintiff, his roommate is HIV positive and he bit Plaintiff twice. Compl. 5-6.
These allegations, when liberally construed in Plaintiff's favor, are sufficient to allow Plaintiff to go forward with Eighth Amendment claims against Defendant Officers Brown and Bowman. See Terry v. Bailey, 376 F.Appx. 894, at *2 (11th Cir. Apr. 27, 2010) (prison officials may be held liable for failing to intervene in an inmate fight, if the officials are in a position to do so). It is therefore ORDERED that service be made on these Defendants and that they 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. Defendants are also reminded of the duty to avoid unnecessary service expenses, and of the possible imposition of expenses for failure to waive service pursuant to Rule 4(d).
MOTION FOR APPOINTMENT OF COUNSEL
With regard to Plaintiff's motion for appointment of counsel, under 28 U.S.C. § 1915(e)(1), the district court "may request an attorney to represent any person unable to afford counsel." However, there is "no absolute constitutional right to the appointment of counsel" in a section 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claim and the complexity of the issues presented. Holt v. Ford, 682 F.2d 850, 853 (11th Cir. 1989). Plaintiff has set forth the essential factual allegations underlying his claims and the Court will determine whether Plaintiff's allegations ...