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Bolick v. Fagan

United States District Court, M.D. Georgia, Macon Division

July 18, 2017

MICHAEL J. BOLICK, Plaintiff,
v.
Deputy Warden JOHN FAGAN, et al., Defendants.

         Proceedings Under 42 U.S.C. § 1983

          ORDER ON UNITED STATES MAGISTRATE JUDGE'S ORDER AND RECOMMENDATION

          C. ASHLEY ROYAL, SENIOR UNITED STATES DISTRICT JUDGE.

         Before the Court is the United States Magistrate Judge's Order and Recommendation [Doc. 48] to allow Plaintiff's claims against Defendants Fagan, Berry, Sellers, Ivey, Ransom, and the Doe CERT Team Officers to go forward; and dismiss without prejudice Plaintiffs' claims against Defendants Childs, Brown, Johnson, and Pless pursuant to 28 U.S.C. § 1915A. The Magistrate Judge also denied Plaintiff's Motions to Appoint Counsel [Docs. 45, 78]. Plaintiff has filed an Objection [Doc. 57] to the Order and Recommendation. Specifically, Plaintiff objects to the Magistrate Judge's Recommendation to dismiss his claims against Defendants Brown, Johnson, and Pless and denial of his Motions to Appoint Counsel.

         The Court has fully considered the record in this case and investigated de novo those portions of the Order and Recommendation to which Plaintiff objects. For the reasons that follow, the Order and Recommendation [Doc. 48] is hereby ADOPTED IN PART. The Order and Recommendation is ADOPTED as to Plaintiff's Motion to Appoint Counsel and claims against Defendants Fagan, Berry, Sellers, Ivey, Ransom, the Doe CERT Team Officers, and Childs. Thus, Plaintiff's Motions to Appoint Counsel are DENIED; his claim against Defendant Childs is DISMISSED; and his claims against Defendants Fagan, Berry, Sellers, Ivey, Ransom, and the Doe CERT Team Officers may go forward. The Order and Recommendation, however, is NOT ADOPTED as to Plaintiff's failure to intervene claims against Defendants Brown, Johnson, and Pless. Accordingly, Plaintiff's failure to intervene claims against Defendants Brown, Johnson, and Pless may go forward.

         I. Failure to Intervene Claims

         In this pro se action pursuant to 42 U.S.C. § 1983, Plaintiff asserts officials at Central State Prison and Hancock State Prison failed to intervene when Hancock State Prison CERT officers used excessive force, in violation of his Eighth Amendment rights. According to the Complaint, Plaintiff was involved in an altercation with two Central State Prison guards on March 31, 2015. On April 8, 2015, two Central State Prison officials-Shift Sergeant Brown and CERT Officer Johnson-transported Plaintiff to Hancock State Prison. There, Warden Sellers instructed the Hancock State Prison CERT officers to “get [Plaintiff's] ass off the van!”[1" name="FN1" id= "FN1">1] The CERT officers “snatched” Plaintiff off the van, shoved him into the intake room, and slammed him into the wall, splitting open his forehead.[2] After accusing Plaintiff of “jump[ing] on officers, ” the CERT officers began punching Plaintiff in the ribs, stomach, and back.[3] One CERT officer struck Plaintiff in the head several times with a book. Another CERT officer grabbed and squeezed Plaintiff's penis and testicles, then yanked the chain on Plaintiff's leg irons, causing him to fall to the floor.[4] After kicking him several times, two CERT officers lifted Plaintiff to his feet and held his arms back while a third CERT officer beat him in the stomach. According to Plaintiff, Central State Prison Warden Berry, Central State Prison Deputy Warden Fagan, Hancock State Prison Warden Sellers, and Hancock State Prison Deputy Warden Ivey ordered the beating, while Defendants Brown, Johnson, and Hancock State Prison Shift Supervisor Pless watched but did nothing to intervene.

         In the Order and Recommendation, the Magistrate Judge recommends dismissing Plaintiff's failure to intervene claims against Defendants Brown, Johnson, and Pless. According to the Magistrate Judge, “[i]t is not clear how [Defendants Brown, Johnson, and Pless] were in a position to intervene” because the CERT officers acted pursuant to orders from supervisory Defendants Warden Berry, Deputy Warden Fagan, Warden Sellers, and Deputy Warden Ivey.[5] In other words, Defendants Brown, Johnson, and Pless' status as subordinate officers relieved them of their duty to stop the beating. The Court disagrees.

         Plaintiff sufficiently states claims against Defendants Brown, Johnson, and Pless for failure to intervene. “[A]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force can be held personally liable for his nonfeasance.”[6] Here, Plaintiff alleges Defendants witnessed his beating by the Hancock State Prison CERT officers but made no attempt to intervene.[7] Defendants' inferior rank did not relieve them of their duty to protect Plaintiff from the CERT officers' malicious actions. Any officer, “whether supervisory or not, ” has a duty to intervene “when a constitutional violation such as an unprovoked beating takes place in his presence.”[8] “The duty to uphold the law does not turn upon an officer's rank. It is neither affected by, nor proportional to, a non-intervening officer's relationship to an offending colleague.”[9] Thus, the fact supervisory Defendants Berry, Fagan, Sellers, and Ivey ordered the beating is irrelevant to Defendants Brown, Johnson, and Pless' duty to intervene. Accordingly, the Recommendation to dismiss Plaintiff's failure to intervene claims against Defendants Brown, Johnson, and Pless is NOT ADOPTED, and Plaintiff's claims against these Defendants may go forward.

         II. Appointment of Counsel

         Plaintiff also objects to the Magistrate Judge's denial of his Motions to Appoint Counsel [Docs. 45, 78].[10" name="FN10" id="FN10">10] Plaintiff contends the serious nature of his allegations and the large number of defendants in this case constitute exceptional circumstances justifying the appointment of counsel. The Court disagrees. As set forth in the Order and Recommendation, exceptional circumstances do not exist at this time. Should it later become apparent that legal assistance is required in order to avoid prejudice to Plaintiff's rights, the Court, on its own motion, will consider assisting him in securing legal counsel at that time. Consequently, there is no need for Plaintiff to file additional requests for counsel. Plaintiff's Objection is therefore OVERRULED.

         CONCLUSION

         For the reasons set forth above, the Order and Recommendation [Doc. 48] is hereby ADOPTED IN PART. The Order and Recommendation is ADOPTED as to Plaintiff's Motion to Appoint Counsel and claims against Defendants Fagan, Berry, Sellers, Ivey, Ransom, the Doe CERT Team Officers, and Childs. Thus, Plaintiff's Motions to Appoint Counsel are DENIED; his claim against Defendant Childs is DISMISSED; and his claims against Defendants Fagan, Berry, Sellers, Ivey, Ransom, and the Doe CERT Team Officers may go forward. The Order and Recommendation, however, is NOT ADOPTED as to Plaintiff's failure to intervene claims against Defendants Brown, Johnson, and Pless. Accordingly, Plaintiff's failure to intervene claims against Defendants Brown, Johnson, and Pless may go forward.

         SO ...


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