United States District Court, S.D. Georgia, Savannah Division
TAVORIS L. JOHNSON, Plaintiff,
JOHN WILCHER, Sheriff, Defendant.
REPORT AND RECOMMENDATION
civil case was opened when plaintiff Tavoris Johnson objected
to the Magistrate Judge's recommendation that his
joint-prisoner case, CV417-181, be dismissed because the
Prison Litigation Reform Act does not allow prisoners to
proceed jointly in forma pauperis. He amended that
Complaint to seek relief solely on his own behalf (doc. 1),
and submitted his Prisoner Trust Fund Account and Consent to
Collection of Fees forms in support of his motion to proceed
in forma pauperis on his own (docs. 4 & 5).
After filing dismissal documents in the other case, Johnson
was ordered to indicate whether he still wished to proceed on
his own in this case. Doc. 6. He has done so. Doc. 7. The
Court now screens his Complaint under 28 U.S.C. §
is an inmate at Chatham County Detention Center. See
doc. 1 at 3. Recently, the coastal areas of the Southeastern
United States, including Chatham County, Georgia, were
threatened by a hurricane. In response to that threat,
Georgia's Governor issued a mandatory evacuation order
for Chatham County. See Greg Bluestein,
Hurricane Irma: Deal Orders Mandatory Evacuation of Coastal
Georgia, Atlanta Journal-Constitution (Sept. 7, 2017),
NMY DR5H/. Sheriff Wilcher exercised “his
discretion” in declining to evacuate the prisoners
despite the mandatory evaluation notice, and plaintiff seeks
$150, 000 in punitive damages arising from that decision and
placement in another jail facility while awaiting resolution
of his state criminal case. See doc. 1 at 3 &
construed, Johnson alleges a violation of his Eighth
Amendment rights. The Eighth Amendment governs the conditions
under which convicted prisoners are confined and the
treatment they receive while in prison. Farmer v.
Brennan, 511 U.S. 825, 832 (1994). Although the
amendment does not require comfortable prisons, it prohibits
inhumane ones. Id. To establish an Eighth Amendment
claim based on prison conditions, an inmate must meet both an
objective component, which requires that the conditions be
“sufficiently serious, ” and a subjective
component, which requires that the officials acted with
“deliberate indifference to prisoner health or
safety.” Jordan v. Doe, 38 F.3d 1559, 1564
(11th Cir. 1994) (internal quotes omitted).
those deprivations denying the minimal civilized measure of
life's necessities are sufficiently grave to form the
basis of an Eighth Amendment violation.” Hudson v.
McMillian, 503 U.S. 1, 9 (1992) (internal quotes
omitted); see also Harris v. Thigpen, 941 F.2d 1495,
1511 (11th Cir. 1991) (basic human necessities include food,
clothing, shelter, sanitation, medical care, and personal
safety). Both the duration and severity of prison conditions
are relevant to the determination of whether the Eighth
Amendment has been violated. See Chandler v. Crosby,
379 F.3d 1278, 1295 (11th Cir. 2004).
“a prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Farmer, 511
U.S. at 837. Thus, only the “unnecessary and wanton
infliction of pain” gives rise to a viable Eighth
Amendment claim. Hudson, 503 U.S. at 5.
plaintiff contends that by declining to evacuate him, Sheriff
Wilcher violated the Constitution. But the Eighth Amendment
does not authorize judicial reconsideration of “every
governmental action affecting the interests or well-being of
a prisoner.” Campbell v. Sikes, 169 F.3d 1353,
1362 (11 Cir. 1999) (quoting Whitley v. Albers, 475
U.S. 312, 319 (1988)). If prison conditions are merely
“restrictive and even harsh, they are part of the
penalty that criminal offenders pay for their offenses
against society.” Chandler, 379 F.3d at
1288-89. Plaintiff does not contend beyond even the most
speculative of allegations that he was actually endangered by
Hurricane Irma, much less that Sheriff Wilcher was
deliberately indifferent to a known risk to his safety.
See doc. 1 at 5 (the Governor had issued a
preemptory mandatory evacuation notice when Irma appeared to
be headed for the Georgia coastline); see also Davidson
v. Cannon, 474 U.S. 344 (1976) (deliberate indifference
requires a state of mind more blameworthy than mere
negligence, or even gross negligence); Whitley, 475
U.S. 312 (it is more than a lack of ordinary due care for a
prisoner's safety). Nor does he allege that he has in
fact been harmed -- only that there was a hurricane and he
was not evacuated before it skirted the coastline and failed
to endanger him at all. Doc. 1 at 5; see 42 U.S.C.
§ 1997e(e) (“No Federal civil action may be
brought by a prisoner . . . without a prior showing of
physical injury.”). Nothing rises to an Eighth
Amendment claim here.
Tavoris Johnson's Complaint should be DISMISSED
with prejudice. Meanwhile, it is time for Johnson to
pay his filing fee. His PLRA paperwork reflects a current
balance of -$714.73, with an average monthly balance of
$710.80 for the past several months. Doc. 5. He therefore
owes an initial partial filing fee of $0. See 28
U.S.C. § 1915(b) (1) (requiring an initial fee
assessment “when funds exist”). Plaintiff's
custodian (or designee) shall therefore set aside and remit
20 percent of all future deposits to his account, then
forward those funds to the Clerk each time the set aside
amount reaches $10.00, until the balance of the Court's
$350.00 filing fee has been paid in full.
the Clerk is DIRECTED to send this Report
and Recommendation (R&R) to plaintiff's account
custodian immediately, as this payment directive is
nondispositive within the meaning of Fed.R.Civ.P. 72(a), so
no Rule 72(b) adoption is required. In the event he is
transferred to another institution, his present custodian
shall forward a copy of this R&R and all financial
information concerning payment of the filing fee and costs in
this case to plaintiff's new custodian. The balance due
from plaintiff shall be collected by the custodian at his
next institution in accordance with the terms of the payment
directive portion of this Order.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge's Report
and Recommendations.” Any request for additional time
to file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 Congress enacted the Prison Litigation
Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110 Stat.
1321-71, to establish procedures to govern civil complaints
filed in federal court by prisoners and other detainees.
Among the PLRA's procedures is the requirement for this
Court to conduct an early screening in all civil cases of any
complaint in which a prisoner seeks redress from a government
entity or official. See 28 U.S.C. § 1915A. The
purpose of the early screening is to “identify
cognizable claims” in the prisoner's complaint and
to dismiss any claims that: (1) are frivolous; (2) are
malicious; (3) fail to state a claim upon which relief can be
granted; or (4) seek monetary relief from a ...