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Lewis v. Hall

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

December 28, 2017

JERMAINE LEWIS JR., Plaintiff,
v.
COII K. HALL, et al., Defendants.

          ORDER AND RECOMMENDATION

          STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE

         Pro se Plaintiff Jermaine Lewis, Jr., who is presently incarcerated at the Macon State Prison in Oglethorpe, Georgia, has filed a Complaint seeking relief pursuant to 42 U.S.C. § 1983 and two motions to amend that Complaint (ECF Nos. 7, 8). Plaintiff has also filed a motion for leave to proceed without prepayment of the Court's full filing fee (ECF No. 2), a motion seeking the appointment of counsel (ECF No. 11), a motion for preliminary injunction (ECF No. 6), and a motion to transfer him to a different prison (ECF No. 12). For the following reasons, the Plaintiff's motion for leave to proceed in forma pauperis (IFP) and his motions to amend are GRANTED, and Plaintiff's medical treatment claims against Defendants Hall, Sale, Williamson, and McLaughlin and his retaliation claims against Defendants Hall, McLaughlin, and Williamson shall proceed for further factual development. However, it is RECOMMENDED that Plaintiff's remaining claims be DISMISSED without prejudice and that his motions for preliminary injunction and transfer be DENIED. Further, Plaintiff's motion seeking appointment of counsel is DENIED.

         I. Motion to Proceed In Forma Pauperis

         28 U.S.C. § 1915 allows the district courts to authorize the commencement of a civil action without prepayment of the normally-required fee upon a showing that the plaintiff is indigent and financially unable to pay the filing fee. A prisoner seeking to proceed IFP under this section must provide the district court with both (1) an affidavit in support of his claim of indigence and (2) a certified copy of his prison “trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint.” § 1915(b).

         In this case, Plaintiff's affidavit and trust account statement show that he is currently unable to prepay the Court's filing fee. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is thus GRANTED and Plaintiff will be assessed an initial partial filing fee of $0.00. Plaintiff, however, is still obligated to pay the full balance of the filing fee, in installments, as set forth in § 1915(b) and explained below. It is accordingly requested that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee. The District Court's filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if the Plaintiff's Complaint (or any part thereof) is dismissed prior to service.

         A. Directions to Plaintiff's Custodian

         It is hereby ORDERED that the warden of the institution wherein Plaintiff is incarcerated, or the sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the Clerk of this Court twenty percent (20%) of the preceding month's income credited to Plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act (PLRA), Plaintiff's custodian is hereby authorized to 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. It is further ORDERED that 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.

         B. Plaintiff's Obligations Upon Release

         Pursuant to provisions of the PLRA, 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; Plaintiff shall continue to remit monthly payments as required by the PLRA. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit payments. Plaintiff's Complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so.

         II. Motion for Appointed Counsel

         Plaintiff has also filed a motion for appointment of counsel (ECF No. 11). Under 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to represent any person unable to afford counsel.” There is, however, “no absolute constitutional right to the appointment of counsel” in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claims and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989) (en banc).

         In this case, Plaintiff has filed a complaint on a standard § 1983 form. The Court is required to review the Complaint to determine whether Plaintiff's allegations state a colorable legal claim. This process is routine in pro se prisoner actions and is thus not an “exceptional circumstance” justifying appointment of counsel. The facts stated in Plaintiff's Complaint are not overly complicated, and the law governing Plaintiff's claims is neither novel nor particularly complex. Plaintiff's motion to appoint counsel (ECF No. 11) is accordingly DENIED. However, if it becomes apparent at some point later in these proceedings that counsel should be appointed in this case, after due consideration of the complexity or novelty of the issues raised, the Court will entertain a renewed motion.

         III. Preliminary Screening

         A. Standard of Review

         The PLRA obligates the district courts 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 but the standard of review is the same. When conducting 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 here, are “held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Id. (internal quotation marks omitted). 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 if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Id. (internal quotation marks omitted). 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 Cnty., 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. Factual Allegations

         Plaintiff's claims arise from his confinement at the Macon State Prison (MSP). Compl. 5, ECF No. 1.[1] According to his Complaint, on April 25, 2017, Plaintiff was being escorted from the “small yard of J-2” back to his cell by Defendant Hall, a prison officer. Id. When they reached Plaintiff's cell, Plaintiff noticed that it was dark inside because his cellmate had covered the light and the window. Id. Plaintiff alleges Defendant Hall opened the cell so Plaintiff could enter, but he did not handcuff Plaintiff's cellmate in accordance with policy. Id. Plaintiff states that when Defendant Hall shut the door to the cell, his cellmate “came at [him] with a tray and started beating” him in the face, head, neck, and shoulders. Id. at 5-6. Plaintiff “screamed” for assistance, and Defendant Hall “eventually” opened the door and removed Plaintiff from the cell. Id. at 6. Plaintiff alleges he sat in the shower for approximately an hour after the attack and that he “never received medical treatment” for his injuries, although he was “bleeding from [his] face, ” his “head was swollen and throbbing, ” and he was in “excruciating pain.” Id. Plaintiff states that Defendant Hall later packed his property and brought it to Plaintiff, but portions of it were missing or damaged. Id.

         The next morning, Plaintiff alleges that he began to complain about “the unfortunate incident of Officer Hall allowing [him] to be beat with a tray and the medical issues [he] was having because of it.” Id. Plaintiff states he spoke to Defendant McLaughlin, the warden, Defendant Sale, the unit manager, and Defendant Williamson, a sergeant, about the attack and his need for medical care. Id. Plaintiff also alleges that various Defendants threatened him when Plaintiff continued to complain about the incident, and that Defendant Hall repeatedly harassed Plaintiff for filing grievances about the incident. Id. at 6-7. Plaintiff further states that he “continued to complain” and “continued to put in sick calls” concerning the injuries he suffered in the attack, but he never ...


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