United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
pro se, inmate-plaintiff Joseph Martin McRoberts
brings this 42 U.S.C. § 1983 action against one of his
jailers - "Pvt. Odell" - for detaining him in
"administrative segregation" solely "due to
the fact that [McRoberts] threatened to infect another inmate
with HIV...." Doc. 1 at 1. Plaintiff says he does not
have HIV, however, and unsuccessfully tried to convince jail
officials of that "numerous times" on the
jail's inmate-grievance "kiosk machine."
Id. "Furthermore, the review process was not
done properly, " although "internal affairs finally
remedied the situation." Id. Still, he wound up
in administrative segregation from July 4, 2014, until June
2015. Id. at 5. Claiming "emotional
distress" and violations of his "8th and 14th
constitutionally Amended Rights, " id.
(unedited), McRoberts seeks money damages, injunctive relief,
id. at 6, and appointment of counsel. Doc. 3.
"administrative segregation" complaint advances a
Due Process claim. Sandin v. Conner, 515 U.S. 472
States may under certain circumstances create liberty
interests which are protected by the Due Process Clause. But
these interests will be generally limited to freedom from
restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes atypical
and significant hardship on the inmate in relation to the
ordinary incidents of prison life.
Id. at 483-84 (cites omitted); see also Magluta
v. Samples, 375 F.3d 1269, 1282 (11th Cir. 2004)
(recognizing a "new Sandin standard, "
under which there is "no liberty interest and no
constitutional violation ... if the Sandin
'atypical and significant hardship' standard [is] not
met."). Inmate Conner's disciplinary confinement for
30 days was not an atypical or significant hardship in
comparison to ordinary conditions his prison system, and it
did not inevitably increase the duration his sentence, so it
did not implicate a protected liberty interest.
Sandin, 515 U.S. at 486 ("We hold that
Conner's discipline in segregated confinement did not
present the type of atypical, significant deprivation in
which a State might conceivably create a liberty
contrast to Conner's case, McRoberts alleges nearly a
year in administrative segregation. But he does not claim
that it was solitary confinement, much less that it was
punitive or atypical. See Williams v. Fountain, 77
F.3d 372, 374 n. 3 (11th Cir. 1996) ("assuming" one
year of solitary confinement would constitute a deprivation
of liberty under Sandin). Thus, he pleads no
actionable Due Process claim. Searcy v. Culliver, 2008
WL 926588 at * 7 (S.D. Ala. Apr. 3, 2008) (three years and
five months in segregation not enough) (citing Al-Amin v.
Donald, 165 F.Appx. 733, 738 (11th Cir. 2006));
McCoy v. Chatman, 2016 WL 7741737, at *4 (M.D. Ga.
July 6, 2016) ("Plaintiffs placement in administrative
segregation does not, by itself, give rise to a liberty
interest: "the transfer of an inmate to less amenable
and more restrictive quarters for non-punitive reasons is
well within the terms of confinement ordinarily contemplated
by a prison sentence.") (quoting Al-Amin, 165
F.App'x at 738)).
McRoberts comes nowhere close to pleading the facts needed to
support an intentional infliction of emotional distress
claim. See Timmons v. Bryson, 2016 WL 4082710 at * 6
(S.D. Ga. Aug. 1, 2016) ("(1) the conduct must be
intentional or reckless; (2) the conduct must be extreme and
outrageous; (3) there must be a causal connection between the
wrongful conduct and the emotional distress; and (4) the
emotional distress must be severe.") (quotes and cite
omitted). And "[n]o Federal civil action may be brought
by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury. ..." 42 U.S.C. § 1997e(e), quoted in
Floyd v. Sigmon, 2016 WL 3713208 at *3 (N.D.Fla.,
June 9, 2016). Having alleged no physical injury,
McRoberts' emotional distress claim also fails.
its facial frivolity, plaintiffs Complaint must be DISMISSED
WITH PREJUDICE and a re-pleading option is not warranted.
Dysart v. BankTrust, 516 F.App'x 861, 865 (11th
Cir. 2013) ("[D]istrict court did not err in denying
Dysart's request to amend her complaint because an
amendment would have been futile."); Langlois v.
Traveler's Ins. Co., 401 F.App'x 425, 426-27
(11th Cir. 2010); Simmons v. Edmondson, 225
F.App'x 787, 788-89 (11th Cir. 2007) (district court did
not err in dismissing complaint with prejudice without first
giving plaintiff leave to amend because no amendment could
have overcome the defendants' immunity). His motion to
appoint counsel is DENIED. Doc. 3. And because of its
frivolity, this case should be recorded as a
"strike" under 28 U.S.C. §
it is time for plaintiff to pay his $350 filing fee. His
furnished account information shows that he has had a $0.00
average monthly balance and $0.00 in monthly deposits in his
prison account during the past six months. Doc. 6. He
therefore owes no initial partial filing fee. See 28
U.S.C. § 1915(b)(1) (requiring an initial fee assessment
"when funds exist, " under a specific 20 percent
formula). But plaintiffs custodian (or designee) shall set
aside 20 percent of all future deposits from his account and
forward same to the Clerk each time the set aside amount
reaches $10.00, until the balance of the Court's $350.00
filing fee has been paid in full.
Clerk is DIRECTED to send this Report and Recommendation
(R&R) to McRoberts' account custodian immediately. In
the event he is transferred to another institution,
plaintiffs present custodian shall forward a copy of this
R&R and all financial information concerning payment of
the filing fee and costs in this case to plaintiffs new
custodian. The balance due from the plaintiff shall be
collected by the custodian at his next institution in
accordance with the terms of this R&R.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned "Objections to Magistrate Judge's Report
and Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F.App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F.App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED.