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Thompson v. McLaughlin

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

November 16, 2017

AQUANUS THOMPSON, Plaintiff,
v.
Warden GREGORY MCLAUGHLIN, et al., Defendants.

          ORDER AND RECOMMENDATION

          THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Aquanus Thompson, a prisoner at Valdosta State Prison in Valdosta, Georgia, has filed a pro se civil rights action in this Court seeking relief under 42 U.S.C. § 1983. ECF No. 1. Plaintiff also seeks leave to proceed in this case without prepayment of the required filing fee. ECF No. 2. Plaintiff's motion for leave to proceed in forma pauperis is GRANTED.[1]

         For reasons stated herein, it is RECOMMENDED that Plaintiff's Fourteenth Amendment due process claim be DISMISSED WITHOUT PREJUDICE. Plaintiff's Eighth Amendment failure to protect claim should proceed for further factual development.

         I. Motion to Proceed in forma pauperis

         Although Plaintiff's motion to proceed in forma pauperis is granted, Plaintiff remains responsible for payment of the full $350.00 filing fee. The CLERK shall thus forward a copy of this Order to the warden and/or business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee.

         In accordance with the provisions of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(b), Plaintiff's custodian (and any successor custodians) shall ensure that twenty percent (20%) of the income credited to Plaintiff's account (at the institution or facility in which he is confined) be remitted to the Clerk of this Court until the $350.00 filing fee has been paid in full. It is ORDERED that Plaintiff's custodian forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. Collection of monthly payments from Plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.

         In the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is authorized in the event Plaintiff is released from custody and fails to remit payments.

         II. Preliminary Screening of Plaintiff's Complaint

         A. Standard of Review

         In accordance with the PLRA, the district courts are obligated to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). Screening is also required under 28 U.S.C. § 1915(e) when the plaintiff is proceeding IFP. Both statutes apply in this case, and the standard of review is the same. When conducting a preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are “‘held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.'” Boxer X, 437 F.3d at 1110 (quoting Hughes, 350 F.3d at 1160). Still, the Court must dismiss a prisoner complaint if it “(1) is 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.” 28 U.S.C. §1915A(b).

         “A claim is frivolous only if it ‘lacks an arguable basis either in law or in fact.'” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The Court may dismiss claims that are based on “‘indisputably meritless legal'” theories and “‘claims whose factual contentions are clearly baseless.'” Id. (quoting Neitzke, 490 U.S. at 327). A complaint fails to state a claim if it does not include “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)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         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 Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).

         B. Plaintiff's Claims

         Plaintiff complains that when he was incarcerated at Macon State Prison on February 28, 2017, two Blood Gang members “entered [his] cell with shanks and threatened to ‘wet [him] up' if [he] didn't leave the dorm.” ECF No. 1 at 6. One of the gang members told Plaintiff that he would be “wet up” if he ever came out of “the hole.” Id. Fearing for his safety, Plaintiff gathered his belongings, left his cell, and reported the incident to dorm officer Debbie Nguyen. Id.

         Nguyen escorted Plaintiff to the hole (“H-1”) and apparently wrote a disciplinary report charging Plaintiff with “failure to follow instructions.” ECF No. 1 at 7. Upon arrival in H-1, Plaintiff told Officer Steven Harris that he needed to be placed in protective custody due to the threats made by the Blood Gang members. ECF No. 1 at 6-7. Officer Harris instructed Plaintiff to submit a sworn statement regarding the incident to Sergeant Childs. ECF No. 1 at 7. Plaintiff states he obtained a statement form “days later” and provided the names of the inmates who threatened him, detailed information about threats, and a request for protective custody. Id. Further, Plaintiff alleges that he wrote Warden McLaughlin regarding his need for protective custody and also spoke with him regarding the issue during inspection. ECF No. 1 at 4-5.

         Following Plaintiff's report of the threats, unnamed jail officials found a shank in the possession of one of the inmates who threatened Plaintiff. ECF No. 1 at 7. They placed this inmate in the hole, in a cell directly across from Plaintiff. Id. Upon learning that Plaintiff occupied the cell across from him, the inmate began to “yell out even more threats of violence towards [Plaintiff].” Id. Plaintiff states that “a known Blood Gang member (inmate King) was placed in [Plaintiff's] cell.” Id. Plaintiff submitted a dorm change request, which included a request for protective custody, to Counselor Miller. Id. He states that he completed a second “statement form, ” but never received a response regarding his request for protective custody. Id. Plaintiff claims he lost sleep, constantly feared for his life because Blood Gang members were in and around his cell, and was in a state of constant emotional distress. Id.

         On March 20, 2017 Plaintiff filed a grievance addressing his need for protective custody. ECF No. 1 at 7-8. On April 14, 2017, Unit Manager Clarence Kegler conducted an investigation into Plaintiff's request and refused to place Plaintiff into protective custody. ECF No. 1 at 8. Plaintiff states that Sergeant C. Hudson was present or participated in the protective custody investigation. ECF No. 1 at 11. According to Plaintiff, officials told him that his request for protective custody was denied because his “housing assignment didn't warrant protective custody” and because Plaintiff violated “facility rules” when he left his dorm after being threatened by the Bloods Gang ...


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