United States District Court, S.D. Georgia, Statesboro Division
WILLIAM A. ACREE, Plaintiff,
WARDEN MARTY ALLEN; DEPUTY WARDEN TREVONZA BOBBITT; UNIT MANAGER JOSEPH HUTCHENSON; DEPUTY WARDEN SHERRY KILGORE; DEPUTY WARDEN PINEIRO; LT. RONNIE SHOEMAKER; SGT. FUGATES; OFFICER DASIA MOSLEY; OFFICER MONICA WILLIAMS; and GEORGIA DEPARTMENT OF CORRECTIONS,  Defendants.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
who is currently housed at Georgia State Prison in
Reidsville, Georgia, filed a Complaint, as amended, pursuant
to 42 U.S.C. § 1983 contesting certain conditions of his
confinement. (Docs. 1, 4.) Plaintiff also filed a Motion for
Summary Judgment and Motions for Preliminary Injunction.
(Docs. 11, 12, 13.) For the reasons set forth below, I
RECOMMEND the Court DISMISS
Plaintiff's claims against Defendants Allen, Bobbitt,
Kilgore, Pineiro, and the Georgia Department of Corrections.
Additionally, the Court should DENY
Plaintiff leave to appeal in forma pauperis as to
these claims. The Court should also DISMISS as
prematurely filed Plaintiff's Motion for Summary
Judgment and DISMISS Plaintiff's Motions
for preliminary injunctive relief. However, the Court finds
Plaintiff sets forth colorable retaliation, excessive force,
and deliberate indifference claims against Defendants
Hutchenson, Fuggitt, Mosley, Williams, and Shoemaker.
Consequently, a copy of Plaintiff's Amended Complaint,
(doc. 4), and a copy of this Order shall be served upon
Defendants Hutchenson, Fuggitt, Mosley, Williams, and
Shoemaker by the United States Marshal without prepayment of
Amended Complaint, Plaintiff contends he filed a claim under
the Prison Rape Elimination Act (“PREA”) against
Defendant Mosley on May 26, 2017, after Defendant Mosley
sexually harassed him. (Doc. 4, p. 8.) On May 31, 2017,
Plaintiff asserts Defendants Shoemaker, Fugitt,
Mosley, and Williams sprayed a chemical agent into
Plaintiff's cell, even though he was restrained.
(Id. at p. 7.) According to Plaintiff, Defendant
Hutchenson gave the final order for this use of force.
Plaintiff alleges Defendants Shoemaker and Fuggit dragged him
out of his cell and took him to a strip cell for eighteen
(18) hours. Plaintiff maintains he was forced back into his
cell without it being decontaminated or cleaned.
(Id.) Plaintiff avers Defendants Allen, Bobbitt,
Kilgore, and Pineiro are “all accountable because it is
their duty and responsibility to ensure proper procedures and
policy [are] being followed by their state employees, and the
laws are not broken. (Id.) Plaintiff also alleges he
suffered from chemical reactions, breathing irregularities,
skin breakouts, and long-term breathing problems and was
denied medical care after the use of excessive force.
(Id. at p. 8.)
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) (per curiam). 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 Allen, Bobbitt,
Kilgore, and Pineiro
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. 2011)
(per curiam) (citation omitted).
seeks to hold Defendants Allen, Bobbitt, Kilgore, and Pineiro
liable solely based on their supervisory positions as Warden
and Deputy Wardens at Georgia State Prison. 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 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 these Defendants, let alone even
conclusory allegations that these Defendants were aware of or
were personally responsible for the alleged violations of
Plaintiff's constitutional rights. Instead, Plaintiff
baldly states Defendants Allen, Bobbitt, Kilgore, and Pineiro
are accountable because they have a duty to ensure their
employees follow policy and procedures. (Doc. 4, p. 7.)
Accordingly, the Court should DISMISS
Plaintiff's claims against Defendants Allen, Bobbitt,
Kilgore, and Pineiro.
Plaintiff's Claims Against the Georgia Department of
names the Georgia Department of Corrections as a Defendant,
yet he makes no factual allegations against this entity. In
order to state a claim for relief under Section 1983, a
plaintiff must satisfy two elements. First, a plaintiff must
allege that an act or omission deprived him “of some
right, privilege, or immunity secured by the Constitution or
laws of the United States.” Hale v. Tallapoosa
County, 50 F.3d 1579, 1582 (11th Cir. 1995). Second, a
plaintiff must allege that the act or omission was committed
by “a person acting under color of state law.”
Id. While local governments qualify as
“persons” under Section 1983, state agencies,
penal institutions, and private corporations which contract
with states to operate penal institutions are generally not
considered legal entities subject to suit. Dean v.
Barber, 951 F.2d 1210, 1214 (11th Cir. 1992)
(“Sheriff's departments and police departments are
not usually considered legal entities subject to suit . . .
.”) (citations omitted); Lawal v. Fowler, 196
Fed.Appx. 765, 768 (11th Cir. 2006) (per curiam) (analyzing
Georgia law and concluding the same); Williams v. Chatham
Cty. Sherriff's Complex, No. 4:07-cv-68, 2007 WL
2345243 (S.D. Ga. Aug. 14, 2007) (“The county jail,
however, has no independent legal identity and therefore is
not an entity that is subject to suit under Section
1983.”) (citations omitted); Shelby v.
Atlanta, 578 F.Supp. 1368, 1370 (N.D.Ga. 1984)
(dismissing the Atlanta Police Department as an improper
Section 1983 defendant).
addition, Plaintiff's claims against the Georgia
Department of Corrections are subject to dismissal under the
Eleventh Amendment to the United States Constitution.
Stevens v. Gay, 846 F.2d 113, 115 (11th Cir. 1989)
(“The Eleventh Amendment bars this action against the
Georgia Department of Corrections and Board of
Corrections.” (citing Alabama v. Pugh, 483
U.S. 781, 782 (1978) (per curiam)); see also Leonard v.
Dep't of Corrs., 782 Fed.Appx. 892, 894 (11th Cir.
2007) (per curiam) (noting the Eleventh Amendment bars suit
against the Georgia Department of Corrections).
case, Plaintiff cannot sustain any putative claims against
the Georgia Department of Corrections, as this is not an
entity subject to suit under Section 1983. In addition, any
claims against the Georgia Department of Corrections are
barred by the Eleventh Amendment. Thus, the Court should
DISMISS Plaintiff's claims against the
Georgia Department of Corrections.
Plaintiff's Claims Against Defendants Shoemaker, Fuggitt,
Mosley, Williams, and Hutchenson
asserts he filed a PREA complaint against Defendant Mosley,
and five days later Defendants Shoemaker, Fuggitt, Mosley,
Williams, and Hutchenson used or authorized an excessive use
of force against him. As a result of this excessive use of
force, Plaintiff suffered physical injury and was denied
necessary medical care and treatment. (Doc. 4, pp. 7-8.)
These claims raise several doctrines of law, which the Court
addresses in turn.
an established principle of constitutional law that an inmate
is considered to be exercising his First Amendment right of
freedom of speech when he complains to the prison's
administrators about the conditions of his confinement.
O'Bryant v. Finch, 637 F.3d 1207, 1212 (11th
Cir. 2011). It is also established that an inmate may
maintain a cause of action against prison administrators who
retaliate against him for making such complaints.
Id. (quoting Smith v. Mosley, 532 F.3d
1270, 1276 (11th Cir. 2008) (citation and punctuation
omitted)). “To establish a First Amendment retaliation
claim, a prisoner need not allege the violation of an
additional separate and distinct constitutional right;
instead, the core of the claim is that the prisoner is being
retaliated against for exercising his right to free
speech.” O'Bryant, 637 F.3d at 1212.
“To prevail, the inmate must establish these elements:
(1) his speech was constitutionally protected; (2) the inmate
suffered adverse action such that the administrator's
allegedly retaliatory conduct would likely deter a person of
ordinary firmness from engaging in such speech; and (3) there
is a causal relationship between the retaliatory action and
the protected speech.” Smith, 532 F.3d at 1276
(citing Bennett v. Hendrix, 423 F.3d 1247, 1250,
1254 (11th Cir. 2005)).
filing of a PREA complaint is arguably protected speech, and
the resulting excessive of use of force cannot be said to be
too far removed temporally from Plaintiff's exercise of
his First Amendment rights to be unrelated occurrences. Thus,
Plaintiff states an arguable retaliation claim against
Defendants Hutchenson, Shoemaker, Fuggitt, Mosley, and