United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
an inmate at Rogers State Prison in Reidsville, Georgia,
filed a cause of action pursuant to 42 U.S.C. § 1983.
(Doc. 1.) Plaintiff also filed and was granted a Motion for
Leave to Proceed in Forma Pauperis. (Docs. 2, 4.)
For the reasons set forth below, I find Plaintiff plausibly
states a colorable Eighth Amendment excessive force claim
against Defendant. However, I RECOMMEND that
the Court DISMISS Plaintiff's official
capacity damages claim against Defendant. The Court
DIRECTS the United States Marshal to serve
Defendant with a copy of this Order and Plaintiff's
September 23, 2017, Defendant used excessive force against
Plaintiff. (Doc. 1, p. 5.) Plaintiff states that as he was
attempting to go to breakfast, Defendant came from behind and
punched Plaintiff in the head and face. Plaintiff contends
Defendant assaulted him because, just moments before, they
had been arguing about Plaintiff's right to go eat
breakfast, which Defendant allegedly was trying to deny.
Plaintiff asserts that several witnesses, who are named in
his Complaint, observed this attacked and gave written
statements. (Id.) Plaintiff states that he
has suffered physical and emotional harm due to
Defendant's attack. As relief for Defendant's
“excessive use of force, ” Plaintiff seeks
compensatory and punitive damages as well as injunctive
relief. (Id. at p. 6.)
brings this action in forma pauperis. (Docs. 2, 4.)
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 and 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 or 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).
reviewing a complaint on an application to proceed in
forma pauperis, the Court is guided by the instructions
for pleading contained in the Federal Rules of Civil
Procedure. 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.
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
Exhaustion at Frivolity Review Stage
to exhaust administrative remedies is an affirmative defense,
and inmates are not required to specially plead or
demonstrate exhaustion in their complaint. Jones v.
Bock, 549 U.S. 199, 216 (2007). However, the normal
pleading rules still apply, and when an affirmative defense
appears on the face of a complaint making it clear that a
prisoner cannot state a claim for relief, dismissal is
warranted under the screening process set out in 28 U.S.C.
§ 1915A. Id. at 214-15. “Even though a
failure-to-exhaust defense is non-jurisdictional, it is
like” a jurisdictional defense because such a
determination “ordinarily does not deal with the
merits” of a particular cause of action. Bryant v.
Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (internal
punctuation and citation omitted). Thus, when a prisoner
admits in his complaint that he has not exhausted the
grievance process, the Court should dismiss the lawsuit
during the frivolity screening. See Okpala v. Drew,
248 Fed.Appx. 72, 73 (11th Cir. 2007) (per curiam); Cole
v. Ellis, No. 5:10-CV-00316-RS-GRJ, 2010 WL 5564632, at
*3 (N.D. Fla. Dec. 28, 2010); Rashid v. Liberty Cty.
Jail, CV410-092, 2010 WL 3239241, at *1 n.1 (S.D. Ga.
May 3, 2010) (“Nothing in Jones . . . forbids
the Court from dismissing a complaint pursuant to §
1997e(a) if it is clear from the face.”)
Legal Requirements for Exhaustion
Congress explicitly mandates, prisoners seeking relief for
alleged constitutional violations must first exhaust
available inmate grievance procedures before filing suit in
federal court. See Porter v. Nussle, 534 U.S. 516,
524 (2002). Section 1997e(a) of Title 42 of the United States
Code states, “No action shall be brought with respect
to prison conditions under section 1983 of this title, or any
other Federal law . . . until such administrative remedies as
are available are exhausted.” In Porter, the
United States Supreme Court held that exhaustion of available
administrative remedies is mandatory. 534 U.S. at 523;
see also O'Brien v. United States, 137 Fed.Appx.
295, 301-02 (11th Cir. 2005) (per curiam) (finding lack of
exhaustion where prisoner “prematurely filed his civil
complaint . . . and . . . ‘failed to heed that clear
statutory command' requiring that his administrative
remedies be exhausted before bringing suit”). However,
prisoners “need not exhaust unavailable”
administrative remedies. Ross v. Blake, 578 U.S.
___, ___, 136 S.Ct. 1850, 1858 (2016).
requirement that the exhaustion of remedies occur
“first in an agency setting allows ‘the agency
[to] develop the necessary factual background upon which
decisions should be based' and giv[es] ‘the agency
a chance to discover and correct its own errors.'”
Green v. Sec'y for Dep't of Corr., 212
Fed.Appx. 869, 871 (11th Cir. 2006) (per curiam) (quoting
Alexander v. Hawk, 159 F.3d 1321, 1327 (11th Cir.
1998) (first alteration in original)). Furthermore, requiring
exhaustion in the prison setting “eliminate[s]
unwarranted federal-court interference with the
administration of prisons” and allows
“corrections officials time and opportunity to address
complaints internally before allowing the initiation of a
federal case.” Woodford v. Ngo, 548 U.S. 81,
Supreme Court has noted exhaustion must be
“proper.” Id. at 92. “Proper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules because no adjudicative
system can function effectively without imposing some orderly
structure on the course of its proceedings.”
Id. at 90-91. In other ...