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Acree v. Allen

United States District Court, S.D. Georgia, Statesboro Division

July 3, 2018

WILLIAM A. ACREE, Plaintiff,
v.
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, [1] Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Plaintiff, 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[2] 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 cost.

         PLAINTIFF'S ALLEGATIONS

         In his 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, [3] 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.)

         STANDARD OF REVIEW

         Plaintiff 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).

         The 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)).

         Whether 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)).

         In its 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 without counsel.”).

         DISCUSSION

         I. Plaintiff's Claims Against Defendants Allen, Bobbitt, Kilgore, and Pineiro

         Section 1983 liability must be based on something more than a defendant's supervisory position or a theory of respondeat superior.[4] 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).

         Plaintiff 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.

         II. Plaintiff's Claims Against the Georgia Department of Corrections

         Plaintiff 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).

         In 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).

         In this 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.

         III. Plaintiff's Claims Against Defendants Shoemaker, Fuggitt, Mosley, Williams, and Hutchenson

         Plaintiff 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.

         A. Retaliation

         It is 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)).

         Plaintiff's 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 Williams.

         B. ...


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