United States District Court, M.D. Georgia, Macon Division
ORDER AND RECOMMENDATION
Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE
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
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.
Motion to Proceed in forma pauperis
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.
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.
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
Preliminary Screening of Plaintiff's
Standard of Review
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.
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.
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
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.
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.
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
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