United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
currently housed at Coffee Correctional Facility in Nicholls,
Georgia, submitted a Complaint pursuant to 42 U.S.C. §
1983. (Doc. 1.) For the reasons set forth below, I
RECOMMEND that the Court
DISMISS Plaintiff's case for failure to
state a claim, DIRECT the Clerk of Court to
enter the appropriate judgment of dismissal and to
CLOSE this case, and DENY
Plaintiff in forma pauperis status on appeal.
February 16, 2017, a Coffee Correctional Facility tactical
squad conducted a shakedown of Plaintiff's dorm. (Doc. 1,
p. 5.) This tactical squad comprised of several officers and
Defendants Jane Does 1-5. During the shakedown, a strip
search was conducted, and Plaintiff was required to strip in
front of Defendant Does 1-5. One Defendant Doe filmed
Plaintiff “lifting and exposing [his] testicles and
penis as well as . . . his anus” to the officers and
female Defendant Does. (Id.) Plaintiff seeks
injunctive relief and monetary damages for this alleged
violation of his constitutional rights. (Id. at p.
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, 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 or 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).
Court looks to the instructions for pleading contained in the
Federal Rules of Civil Procedure when reviewing a complaint
on an application to proceed in forma pauperis.
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)).
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)).
analysis, the Court will 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 . . .
.”) (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
Eighth Amendment Claim
prison official's sexual assault of a prisoner may
violate the Eighth Amendment because sexual assault has
“no legitimate penological purpose and is simply not
part of the penalty that criminal offenders pay for their
offenses against society.” See Boxer X v.
Harris, 437 F.3d 1107, 1111 (11th Cir. 2006). Under
Eleventh Circuit law, “severe or repetitive sexual
abuse of a prisoner by a prison official can violate the
Eighth Amendment.” Boxer X, 437 F.3d at 1111.
However, “[t]o prove an Eighth Amendment violation
based on sexual abuse, a prisoner must show that he suffered
an injury that was objectively and sufficiently serious and
that the prison official had a subjectively culpable state of
Boxer X, the Eleventh Circuit Court of Appeals
“concluded that a female prison guard's
solicitation of a male prisoner's manual masturbation,
even under the threat of reprisal, does not present more than
de minimis injury and affirmed the dismissal of the
Eighth Amendment claim.” Id. (internal
citation and punctuation omitted). The Eleventh Circuit
explained that the plaintiff failed “to satisfy the
objective component of the applicable standard in that he has
not alleged any injury, let alone an injury of sufficient
gravity to establish an Eighth Amendment violation.”
Id.; see Allen v. McDonough, No.
4:07-CV-469-RH-GRJ, 2011 WL 4102525, at *5 (N.D. Fla. Aug.17,
2011) (collecting cases in support of the proposition that
“one incident of non-violent harassment alone [is] not
sufficient to meet the cruel and unusual punishment
standard”), adopted by 2011 WL 4103081 (N.D.
Fla. Sept. 14, 2011).
Defendant Doe's filming of Plaintiff during the strip
search is insufficient to give rise to an Eighth Amendment
violation. This holds true even if Plaintiff was required to
lift and expose his genitals to other female Defendant Does
present during the search. Plaintiff fails to show an injury
sufficiently serious to trigger an Eighth Amendment
violation. See Moton v. Walker, 545 F. App'x
856, 860 (11th Cir. 2013) (affirming the grant of summary
judgment in favor of a prison guard who conducted a visual