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Cadle v. Tatum

United States District Court, S.D. Georgia, Statesboro Division

July 31, 2017

DANIEL CADLE, Plaintiff,
v.
CLAYTON TATUM; JENNIFER CLARK; and ANDREW MCFARLANE, all in their individual and official capacities, [1] Defendants.

          ORDER

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Plaintiff, who is incarcerated at Rogers State Prison in Reidsville, Georgia, filed a Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) Plaintiff also filed a Motion to Proceed in Forma Pauperis, (doc. 2), and a Motion to Appoint Counsel, (doc. 4). For the reasons set forth below, the Court DEFERS ruling on Plaintiff's Motion to Proceed in Forma Pauperis and DIRECTS Plaintiff to amend his Complaint and to submit the appropriate form on which to move to proceed in forma pauperis within fourteen (14) days of the date of this Order. The Court also DIRECTS the Clerk of Court to mail Plaintiff the Court's preferred forms for prisoner-plaintiffs wishing to move to proceed without pre-payment of fees and for the filing of Section 1983 complaints. The Court DENIES Plaintiff's Motion to Appoint Counsel.

         BACKGROUND

         In his Complaint, Plaintiff contends homophobic gang members assaulted him and his cellmate after Plaintiff's release from the Special Housing Unit (“SHU”). Plaintiff asserts unidentified gang members told him the next day that he would be killed if Plaintiff told correctional officers about the assault. Nevertheless, Plaintiff informed Officer Brooks and Sergeant Castro of this situation a few days later, and these officers told Plaintiff he should inform his dorm officer of this situation. (Doc. 1, p. 2.) Plaintiff was later moved to another dorm, and gang members threatened to assault him or make him leave because Plaintiff is homosexual. Plaintiff asserts he told Officer Lewis about this threat, and Officer Lewis advised him to go to the “hole”. (Id.) Plaintiff did so and an unknown person spat on him. Plaintiff then went to the chow hall, and Officer Howard allowed Plaintiff to stay in the chow hall until Lieutenant Odum arrived. Plaintiff states Lieutenant Odum told Plaintiff he could move Plaintiff to another building a few days later, yet Plaintiff told Lieutenant Odum he would get assaulted if he went back to the dorm. (Id.) Plaintiff states this is the last he heard about being moved to another building because he was given a disciplinary report for failure to follow instructions. Plaintiff avers he has been in the SHU pending reassignment since the day he spoke to Lieutenant Odum.

         Plaintiff alleges placement in the SHU is for disciplinary reasons, yet he is not in the SHU for disciplinary reasons. Plaintiff contends there are no panic buttons or sprinklers in the cells in the SHU. Plaintiff also contends the food is served cold, is “frequently infested, ” and is served through the same slot as dirty brooms and mops are when they are passed through the cells. (Id. at p. 3.) Plaintiff maintains the inmates in the SHU are not given any cleaning supplies for the toilets, the rooms are infested with roaches, mice, spiders, mosquitoes, and gnats, and black mold is growing inside the vents. Plaintiff names as Defendants Clayton Tatum, Jennifer Clark, and Andrew McFarlane, who are the Warden and two Deputy Wardens at Rogers State Prison.

         DISCUSSION

         Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows an inability to pay the filing fee and also includes a statement of the nature of the action which shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a complaint in which a prisoner seeks redress from a governmental entity. Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is frivolous, malicious, or fails to state a claim upon which relief may be granted or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         When reviewing a Complaint on an application to proceed in forma pauperis, the Court is guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed.R.Civ.P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without arguable merit either in law or fact.'” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

         Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Rundle, 393 F. App'x 675, 678 (11th Cir. 2010). Under that standard, this Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

         In its analysis, the Court must abide by the long-standing principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”).

         I. Plaintiff's Motion to Proceed in Forma Pauperis

         While Plaintiff has submitted an Application to Proceed in Forma Pauperis, he has used a form which is not the form this Court wishes for prisoners to use when seeking to proceed before this Court. In fact, the form Plaintiff submitted is handwritten in its entirety. To this end, the Court DIRECTS the Clerk of Court to provide Plaintiff with a blank copy of the application to proceed in forma pauperis form which asks prisoner-plaintiffs questions about their inmate trust accounts on page 2 of this application. The Court DIRECTS Plaintiff to re-submit his application within fourteen (14) days of this Order and DEFERS ruling on Plaintiff's Motion until he has submitted the proper forms. Plaintiff is advised that his failure to timely comply with this Court's directive may result in the dismissal of his Complaint for failure to follow a Court Order and failure to prosecute.

         II. Plaintiff's Amended Complaint

         In addition, Plaintiff's Complaint was not submitted on the form complaint prisoners are to use when filing 42 U.S.C. § 1983 causes of action in this Court. In fact, Plaintiff's Complaint is also entirely handwritten. The Court DIRECTS the Clerk of Court to provide Plaintiff with a proper blank prisoner civil rights complaint form. The Court also DIRECTS Plaintiff to complete this form within fourteen (14) days of this Order and to pay special attention to the questions this forms asks. In addition, Plaintiff is ...


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