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 Georgia State Prison in Reidsville, Georgia,
filed the above-captioned 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,
3.) After an initial review of Plaintiff's Complaint, the
Court deferred formal frivolity review and directed Plaintiff
to file an Amended Complaint. (Doc. 7.) Plaintiff has since
filed his Amended Complaint. (Doc. 8.)
reasons set forth below, I find Plaintiff plausibly states
colorable: Eighth Amendment excessive force and failure to
intervene claims against Defendant Herndon; First Amendment
retaliation claims against Defendants Jackson, Hutcheson,
Allen, and Toole; and Fourteenth Amendment procedural due
process claims against Defendants Jackson, Hutcheson, Allen,
and Toole. However, I RECOMMEND that the
Court DISMISS Plaintiff's official
capacity claims against all Defendants, as well as
Plaintiff's access-to-courts and substantive due process
claims against Defendants Jackson, Hutcheson, Allen, and
Toole. The Court DIRECTS the United States
Marshal to serve Defendants Herndon, Jackson, Hutcheson,
Allen, and Toole with a copy of this Order and
September 30, 2016, Defendant Herndon excessively pepper
sprayed Plaintiff while he was on his back protecting himself
from the attack of another inmate, Tommy Best. (Doc. 8, pp.
6-7.) Plaintiff contends that Defendant Herndon should have
tried to protect him from Best but instead made the situation
worse by spraying Plaintiff. Defendant Herndon's pepper
spray blinded Plaintiff and allowed Best to take unimpeded
shots at Plaintiff's face, causing him exacerbated harm.
was placed in administrative segregation and given a
disciplinary report for allegedly fighting with Best.
Defendant Allen later expunged Plaintiff's disciplinary
report due to Defendant Herndon giving “false factual
statements, ” but Plaintiff remained in segregation,
under a behavioral modification program, because Defendants
Jackson and Hutcheson wanted to “silence” him and
also because of prior infractions. Plaintiff further alleges
that Defendants Allen and Toole denied Plaintiff's
challenge to his placement in Tier II segregation because
they also wanted to silence Plaintiff and prevent him from
reporting his claims against Defendant Herndon.
argues that Defendant Herndon's assault by pepper spray
not only worsened the harm from Best's attack but also
caused the onset of a mental health adjustment disorder
because it triggered mental trauma from a prior prison
attack. (Id. at p. 8.) Plaintiff alleges his food
portions have been restricted while in Tier II, causing
weight loss, and that his sentence duration could be
lengthened due to his inability to meet parole requirements
while on the behavioral modification program. (Id.
at pp. 8, 10.) In addition to the mental trauma, Plaintiff
alleges that the attack from Best and Defendant Herndon
caused physical injuries to his eyes and face, and worsened
his medical handicaps. (Id. at p. 10.) As relief,
Plaintiff seeks compensatory damages in the amount of three
million dollars. (Id. at p. 11.)
brings this action in forma pauperis. (Docs. 2, 3.)
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
Dismissal of Official Capacity Claims
cannot sustain a Section 1983 claim for monetary damages
against Defendants in their official capacities. States are
immune from private suits pursuant to the Eleventh Amendment
and traditional principles of state sovereignty. Alden v.
Maine, 527 U.S. 706, 712- 13 (1999). Section 1983 does
not abrogate the well-established immunities of a state from
suit without its consent. Will v. Mich. Dep't of
State Police, 491 U.S. 58, 67 (1989). Because a lawsuit
against a state officer in his official capacity is “no
different from a suit against the [s]tate itself, ”
such a defendant is immune from suit under Section 1983.
Id. at 71. Here, the State of Georgia would be the
real party in interest in a suit against Defendants in their
official capacities as employees of the Georgia Department of
Corrections. Accordingly, the Eleventh Amendment immunizes
these actors from suit in their official capacities. See
Free v. Granger, 887 F.2d 1552, 1557 (11th Cir. 1989).
Without a waiver of that immunity, which is absent in this
case, Plaintiff cannot sustain any constitutional claims
against Defendants in their official capacities for monetary
relief. Thus, the Court should DISMISS these
Excessive Force Claim against Defendant Herndon
Eighth Amendment's proscription against cruel and unusual
punishment governs the amount of force that prison officials
are entitled to use against inmates. Campbell v.
Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). An
excessive force claim has two requisite parts: an objective
and a subjective component. Sims v. Mashburn, 25
F.3d 980, 983 (11th Cir. 1994). In order to satisfy the
objective component, the inmate must show that the prison
official's conduct was “sufficiently
serious.” Farmer v. Brennan, 511 U.S. 825, 834
(1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)). The subjective component requires a showing that the
force used was “maliciously and sadistically for the
very purpose of causing harm” rather than “a good
faith effort to maintain or restore discipline.”
Whitley v. Albers, 475 U.S. 312, 320-21 (1986). In
order to determine whether the force was used for the
malicious and sadistic purpose of causing harm or whether the
force was applied in good faith, courts consider the
following factors: (1) the need for the exercise of force,
(2) the relationship between the need for force and the force
applied, (3) the extent of injury that the inmate suffered,
(4) the extent of the threat to the safety of staff and other
inmates, (5) and any efforts taken to temper the severity of
a forceful response. Skelly v. Okaloosa Cty. Bd. of Cty.
Comm'rs, 456 Fed.Appx. 845, 848 (11th Cir. 2012)
(per curiam) (quoting Fennell v. Gilstrap, 559 F.3d
1212, 1217 (11th Cir. 2009)).
contends that Defendant Herndon used excessive force by
spraying Plaintiff with pepper spray without justification.
Plaintiff asserts that he was attacked by Best, “never
threw one punch, ” and was on the ground shielding
himself from Best when Defendant Herndon doused him in pepper
spray. (Doc. 1, p. 6.) Defendant Herndon's actions
allegedly exposed Plaintiff to more harm from Best, caused
physical injuries to his eyes and face, and triggered mental
trauma. (Id. at p. 10.) Although Defendant Herndon
may very well have had a legitimate need to intervene in the
altercation to eliminate a safety threat, at this early stage
of the litigation, and construing the facts in
Plaintiff's favor, Plaintiff has stated a plausible
excessive force claim.
Plaintiff's excessive force claim survives frivolity
review and shall proceed against Defendant ...