United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EM'S UNITED STATES MAGISTRATE JUDGE SOUTHERN DIS TRICT
currently incarcerated at Calhoun State Prison in Morgan,
Georgia, commenced the above-captioned case pursuant to 42
U.S.C. § 1983 regarding events allegedly occurring at
Johnson State Prison (“JSP”) in Wrightsville,
Georgia. Because he is proceeding IFP, Plaintiff's
amended complaint must be screened to protect potential
defendants. Phillips v. Mashburn, 746 F.2d 782, 785
(11th Cir. 1984); Al-Amin v. Donald, 165 Fed.Appx.
733, 736 (11th Cir. 2006).
SCREENING OF THE COMPLAINT
names as Defendants (1) Shawn Emmons, Warden; (2) Constance
Pullins, Nurse; (3) CERT Sgt. Hurst; (4) CERT Ofc. Smith; and
(5) CERT Ofc. Timmons. (Doc. no. 9, pp. 1-3.) Taking all of
Plaintiff's factual allegations as true, as the Court
must for purposes of the present screening, the facts are as
April 28, 2016, JSP Physician Assistant Lindsey prescribed
nebulizer breathing treatments for Plaintiff starting April
29, 2016. (Id. at 5.) Defendant Pullins refused to
provide Plaintiff with his nebulizer treatment on the
following dates: April 29, 2016; May 2, 2016; May 3, 2016;
May 13-18, 2016; and May 21-22, 2016. (Id.)
Defendant Pullins discontinued Plaintiff's breathing
treatments on May 23, 2016. (Id.)
28, 2016, Defendants Hurst, Timmons, and Smith came to
Plaintiff's cell and ordered Plaintiff and his roommate
out of the cell. (Id. at 6.) They pat-searched
Plaintiff's roommate and sent him to the TV room, but
asked Plaintiff to step back into the cell and strip to
ensure Plaintiff was not hiding anything in his body
cavities. (Id.) Defendants did not find a cell phone
in Plaintiff's possession. (Id.)
the search, Plaintiff walked down the stairs to the TV room.
(Id.) Fellow inmate Cedrick Williams asked Plaintiff
to kick a Styrofoam cup under his cell, which Plaintiff did.
(Id.) Defendants Hurst, Timmons, and Smith removed
inmate Williams and his roommate and searched the cell.
(Id. at 7.) They found a cell phone and charger in
the locker box of the cell. (Id.) Defendants Timmons
told Plaintiff, “I told you I'd get you, ”
handcuffed Plaintiff, and led him to the shower to be strip
searched again. (Id. at 7-8.) After Defendant
Timmons read Plaintiff his rights, Plaintiff asked for his
inhaler because the shower was hot, exacerbating his asthma
and causing him to have difficulty breathing. (Id.
at 8.) Defendants Timmons and Hurst told Plaintiff his
inhalers had been thrown away. (Id.) Plaintiff then
looked to Defendant Smith who put her hands in the air and
30, 2016, Plaintiff attempted to get an emergency inhaler
from Defendant Pullins and witnesses Rogers and Bryan Jr.,
but they did not provide him with one. (Id. at 9.)
On July 4, 2016, Plaintiff asked Nurse Choice for an
emergency inhaler, and she provided one to him.
the shower encounter with Defendants Hurst, Timmons, and
Smith, Plaintiff informed them he needed an extension cord
for his C-PAP breathing machines, but they did not provide
him with one. (Id. at 8.) Plaintiff also spoke to
various other prison officials, but to no avail.
(Id. at 9.) On July 6, 2016, after Ofc. Grissett
told Sgt. Hicks that Plaintiff needed an extension cord, Sgt.
Hicks moved Plaintiff to another dorm room and gave him an
extension cord for his C-PAP. (Id. at 9-10.)
Legal Standard for Screening
complaint or any portion thereof may be dismissed if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, or if it seeks monetary relief from a
defendant who is immune to such relief. See 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b). A claim is
frivolous if it “lacks an arguable basis either in law
or in fact.” Neitzke v. Williams, 490 U.S.
319, 325 (1989). “Failure to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard as
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6).” Wilkerson v. H & S, Inc., 366
Fed.Appx. 49, 51 (11th Cir. 2010) (citing Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
“state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed
factual allegations, “it demands more than an
accusation.” Iqbal, 556 U.S. at 678. A
complaint is insufficient if it “offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action, '” or if it
“tenders ‘naked assertions' devoid of
‘further factual ...