United States District Court, S.D. Georgia, Statesboro Division
ORDER and MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
who is currently housed at Autry State Prison in Pelham,
Georgia, filed a Complaint, as amended,  pursuant to 42
U.S.C. § 1983 contesting certain conditions of his
confinement while he was housed at Jenkins Correctional
Facility in Millen, Georgia. (Doc. 6.) Plaintiff also filed a
Motion for Appointment of Counsel and for a Copy of this
Court's Local Rules, (doc. 29), and a Motion for Leave to
Appeal in Forma Pauperis and a Motion to Appoint
Counsel before the Eleventh Circuit Court of Appeals, (docs.
31, 32). For the reasons set forth below, the Court
DENIES Plaintiff's Motion for
Appointment of Counsel, GRANTS
Plaintiff's Motion for Copies, and
DISMISSES as prematurely and improvidently
filed Plaintiff's Motion for Leave to Appeal in Forma
Pauperis and additional Motion for Appointment of
Counsel. I RECOMMEND the Court
DISMISS Plaintiff's claims against
Defendants Adams and Jordan and DENY
Plaintiff in forma pauperis status on appeal as to
those claims. However, Plaintiff arguably states colorable
deliberate indifference claims against Nurse Peacock and two
John Doe officers. Accordingly, the Court
DIRECTS the United States Marshal to serve a
copy of Plaintiff's Recast Complaint and this Order, as
set forth herein.
asserts he was placed in general population at Jenkins
Correctional Facility on March 28, 2017, and, on this same
day, two gang members tried “to extort” Plaintiff
because he has to walk with a cane. (Doc. 6, p. 5.) Plaintiff
contends he refused to pay these two gang members, so they
“jumped” him, yet he was able to get away from
them. However, the gang members were able to catch Plaintiff
when he was in the front part of the dormitory, at which time
they kicked him and stomped his back, causing trauma to
Plaintiff's spine and making him defecate in his pants.
(Id.) Plaintiff alleges Officer Jane Doe allowed him
to wash himself off, and he told her he was in pain.
(Id. at p. 7.) Plaintiff also alleges two John Doe
officers handcuffed him and took his cane, despite their
knowledge that Plaintiff walks with a cane, had been
assaulted, and was in severe pain. These two officers took
Plaintiff to the medical unit, and he told Nurse Peacock that
he was in severe pain and needed to go to the hospital.
(Id.) According to Plaintiff, Nurse Peacock denied
the request to go to the hospital. Instead, Plaintiff asserts
the two officers took him to segregation for sixty-four (64)
days without medical care, and he was charged with assaulting
an inmate as a result of the assault he endured.
(Id. at p. 8.) Plaintiff contends he was forced to
sit on the shower floor three times a week while in
segregation, which caused a painful and bleeding rash on his
1, 2017, Plaintiff avers another John Doe officer and Officer
Bennett, neither of whom was trained in medical transport,
picked him up by his hand, even though these officers knew of
his injury and inability to walk. (Id. at p. 9.)
Additionally, Plaintiff maintains these transport officials
were made to put him in a wheelchair, yet he was still
transported in a non-handicapped accessible van, which was
exhausting and painful. (Id.)
contends that, when he arrived at Autry State Prison, an
officer there made him get on his butt and pulled him off the
transport van backward, causing Plaintiff pain. (Id.
at pp. 9-10.) Plaintiff asserts he had an x-ray taken on June
21, 2017, which revealed his spine had been re-injured
compared to an x-ray and MRI from 2013. Plaintiff alleges he
is now confined to a wheelchair due to this assault and has
constant pain in his spine and legs. (Id. at p. 10.)
contends Defendant Robert Adams was deliberately indifferent
to his “right to be subjected to a non-gang ran hostile
[e]nvironment knowing [he] was a disabled inmate, which
subjected Plaintiff to be the target of gang
attacks[.]” (Id. at p. 12.) Plaintiff also
contends Defendants Adams and Adam Jordan were
“deliberate[ly] indifferent” to his “right
to due-process” because Plaintiff was placed in
unlawful segregation. (Id. at p. 13.) Plaintiff
asserts Nurse Peacock and the two John Doe officers who
escorted him to the medical unit after his assault were
deliberately indifferent to his serious medical needs-Nurse
Peacock because he denied Plaintiff any medical care and the
two John Doe officers because they did not provide him with a
wheelchair. (Id. at pp. 12-13.)
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 Fed.Appx. 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
Plaintiff's Claims Against Defendants Adams and
1983 liability must be based on something more than a
defendant's supervisory position or a theory of
respondeat superior. Bryant v. Jones, 575
F.3d 1281, 1299 (11th Cir. 2009); Braddy v. Fla.
Dep't of Labor & Emp't Sec., 133 F.3d 797,
801 (11th Cir. 1998). A supervisor may be liable only through
personal participation in the alleged constitutional
violation or when there is a causal connection between the
supervisor's conduct and the alleged violations.
Id. at 802. “To state a claim against a
supervisory defendant, the plaintiff must allege (1) the
supervisor's personal involvement in the violation of his
constitutional rights, (2) the existence of a custom or
policy that resulted in deliberate indifference to the
plaintiff's constitutional rights, (3) facts supporting
an inference that the supervisor directed the unlawful action
or knowingly failed to prevent it, or (4) a history of
widespread abuse that put the supervisor on notice of an
alleged deprivation that he then failed to correct.”
Barr v. Gee, 437 Fed.Appx. 865, 875 (11th Cir.
appears Plaintiff seeks to hold Defendants Adams and
Jordan liable solely based on their supervisory
positions as Warden and Deputy Warden at Jenkins Correctional
Facility. However, Plaintiff fails to present any facts
indicating there is a causal connection between any actions
or inaction of these Defendants and the alleged violation of
Plaintiff's constitutional rights. He does not allege
that these Defendants were personally involved in the
conditions that he complains of or that the conditions
resulted from some custom or policy these Defendants
promulgated or maintained. Plaintiff also fails to plausibly
allege that these Defendants directed the allegedly unlawful
conditions or ignored a widespread history of abuse in this
regard. In fact, Plaintiff fails to make any factual
allegations against Defendants Adams and Jordan, let alone
even conclusory allegations that these Defendants were aware
of or were personally responsible for the alleged violations
of Plaintiff's constitutional rights. Accordingly, the
Court should DISMISS Plaintiff's claims
against Defendants Adams and Jordan.
Plaintiff's Failure to Protect Claim Against Defendant
contention that Defendant Adams was deliberately indifferent
to his placement in a dormitory with gang members implicates
the Eighth Amendment's proscription against cruel and
unusual punishment. That proscription imposes a
constitutional duty upon prison officials to take reasonable
measures to guarantee the safety of prison inmates.
Caldwell v. Warden, FCI Talladega, 748 F.3d
1090, 1099-100 (11th Cir. 2014). While “[p]rison
officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners[, i]t is not,
however, every injury suffered by one prisoner at the hands
of another that translates into a constitutional liability. .
. .” Purcell ex rel. Estate of Morgan v. Toombs
County, 400 F.3d 1313, 1319 (11th Cir. 2005) (ellipses
in original) (quoting Farmer v. Brennan, 511 U.S.
825, 833, 834 (1994)).
an Eighth Amendment violation, a plaintiff must “allege
facts sufficient to show ‘(1) a substantial risk of
serious harm; (2) the defendants' deliberate indifference
to that risk; and (3) causation.'” Lane v.
Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016) (quoting
Hale, 50 F.3d at 1582). The Court assesses the first
element-a substantial risk of serious harm-under an objective
standard. Caldwell, 748 F.3d at 1099. The objective
component requires a plaintiff to show that the condition he
complains of is sufficiently serious to violate the Eighth
Amendment. Hudson v. McMillian, 503 U.S. 1, 8
(1992); Chandler v. Crosby, 379 F.3d 1278, 1289-90
(11th Cir. 2004).
second element-the defendant's deliberate indifference to
a substantial risk of serious harm-has three components:
“(1) subjective knowledge of a risk of serious harm;
(2) disregard of that risk; (3) by conduct that is more than
mere negligence.” Farrow v. West, 320 F.3d
1235, 1245 (11th Cir. 2003) (citing McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir.
1999)). The “subjective knowledge of a risk
of serious harm” component requires a defendant to have
“actual knowledge that an inmate faced a substantial
risk of serious harm[.]” Caldwell, 748 F.3d at
“[t]o be deliberately indifferent a prison official
must know of and disregard ‘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 that
inference.'” Smith v. Reg'l Dir. of Fla.
Dep't of Corr., 368 Fed.Appx. 9, 14 (11th Cir. 2010)
(quoting Purcell, 400 F.3d at 1319-20).
“[S]imple negligence is not actionable under §
1983, and a plaintiff must allege ‘a conscious or
callous indifference to a prisoner's rights.'”
Id. (quoting Williams v. Bennett, 689 F.2d
1370, 1380 (11th Cir. 1982)); see also Carter v.
Galloway, 352 F.3d 1346, 1350 (11th Cir. 2003)
(“[M]erely negligent failure to protect an inmate from
attack does not justify liability under section 1983 . . .
.”) (citations and internal quotations omitted).
excessive risk of inmate-on-inmate violence at a jail creates
a substantial risk of serious harm.” Purcell,
400 F.3d at 1320. “A prisoner has a right . . . to be
reasonably protected from constant threat of violence . . .
from his fellow inmates.” Id. at 1320-21
(citing Woodhous v. Virginia, 487 F.2d 889, 890 (4th
Cir. 1973)). However, prison officials are not held liable
for every attack by one inmate upon another, Zatler v.
Wainwright, 802 F.2d 397, 400 (11th Cir. 1986), nor are
they guarantors of a prisoner's safety. Popham v.
City of Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990).
Rather, a prison official must be faced with a known risk of
injury that rises to the level of a “strong likelihood
rather than a mere possibility” before his failure to
protect an inmate can be said to constitute deliberate
indifference. Brown v. Hughes, 894 F.2d 1533, 1537
(11th Cir. 1990). Thus, to state an Eighth Amendment failure
to protect claim, a plaintiff must show that the defendant
knew that Plaintiff faced a risk of injury and that risk was
a strong likelihood.
fails to allege that Defendant Adams knew Plaintiff faced a
specific threat to his safety. Plaintiff only alleges that
Defendant Adams was deliberately indifferent to
Plaintiff's safety because Plaintiff is disabled, which
subjected him to be the target of gang attacks. (Doc. 6, p.
12.) Plaintiff does not even allege that he informed
Defendant Adams that he had been threatened with harm or that
any specific person or persons posed a threat to his safety.
By simply knowing that Plaintiff is disabled, Defendant Adams
could not have known that Plaintiff faced a risk of injury,
much less that the risk of injury was a strong likelihood.
Moreover, Plaintiff has failed to plausibly allege that
Defendant Adams drew such an inference. Consequently,
Plaintiff has failed to meet both the objective and
subjective prongs of a deliberate indifference to safety
claim. See Proctor v. Georgia ex rel. Olens, No.
5:12-CV-342 HL, 2013 WL 3063527, at *8 (M.D. Ga. June 17,
2013) (“Nowhere in the first amended complaint does
Plaintiff specifically allege that any particular ...