United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE.
an inmate at Wilcox State Prison in Abbeyville, Georgia, is
proceeding pro se in this case filed pursuant to 42
U.S.C. § 1983 regarding events alleged to have occurred
at Johnson State Prison (“JSP”) in Wrightsville,
Georgia. Plaintiff initiated this case in the Superior Court
of Johnson County, Georgia, and, on August 10, 2018,
Defendants removed the case to this Court and paid the filing
fee. (Doc. no. 1.) Notwithstanding the payment of the filing
fee, the case 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 Leal v.
Georgia Dep't of Corr., 254 F.3d 1276, 1277-78 (11th
Cir. 2001) (per curiam); 28 U.S.C. § 1915A.
Accordingly, the Court screens Plaintiff's amended
complaint herein and REPORTS and
RECOMMENDS Plaintiff's claims against
Defendants Jackson, Smith, Hurst, Scott, Emmons, and Martin
be DISMISSED for failure to state a claim
upon which relief may be granted, and Defendants Jackson,
Smith, Hurst, Scott, Emmons, and Martin be
DISMISSED from this case.
before the Court is Defendants Emmons, Jackson, Granison,
Caldwell, and Martin's motion to dismiss, (doc. no. 83),
which should be DENIED AS MOOT as to
Defendants Emmons, Jackson, and Martin in light of the
Court's screening of the amended complaint, and
GRANTED IN PART and DENIED IN
PART as to Defendants Caldwell and Granison. In a
companion Order, the Court allows to proceed Plaintiff's
First Amendment retaliation and Eighth Amendment conditions
of confinement claims against Warden Caldwell and
Plaintiff's First Amendment free exercise, Religious Land
Use and Institutionalized Persons Act (“RLUIPA”),
and Eighth Amendment conditions of confinement claims against
Defendant Granison. Finally, the Court recommends
Plaintiff's motions to amend, motion regarding service,
and motions for sanctions, default judgment, and summary
judgment be DENIED, (doc. nos. 69, 99, 98,
106, 107, 109), and the remaining pending motions be
DENIED AS MOOT.
SCREENING OF THE AMENDED COMPLAINT
amended complaint, Plaintiff names as Defendants: (1) Ms.
Granison, Kitchen Manager of JSP; (2) Tarra Jackson, Chief
Counselor of JSP; (3) Lakeisha Smith, CERT Officer JSP; (4)
Lt. Jason Hurst, JSP; (5) Officer Scott, JSP; (6) Shawn
Emmons, former warden of JSP; (7) Antoine Caldwell, Warden of
JSP; and (8) Officer Jan Martin, JSP. (Doc. no. 41, pp. 3-5.)
Taking all of Plaintiff's allegations as true, as the
Court must for purposes of the present screening, the facts
are as follows.
March 21, 2017, Plaintiff was transferred from Hayes State
Prison (“HSP”) to JSP. (Id. at 7.) Prior
to the transfer, several HSP inmates asked officials to give
Plaintiff store goods because Plaintiff did not have food.
(Id.) The officers allowed inmates to give Plaintiff
approximately $178 in store goods and hygiene products and
gave Plaintiff property sheets for the items. (Id.)
Plaintiff arrived at JSP with sixteen other inmates.
(Id.) Defendants Hurst, Smith, and Scott and an
unknown CERT officer took the inmates to a gymnasium for
orientation and to inventory their belongings. (Id.)
Many inmates had a substantial number of belongings, but the
officers singled out Plaintiff, cursing at him and asking him
what island he was from because he looked different and had
an accent. (Id.) Plaintiff informed the officers he
is from Haiti. (Id.)
officers separated Plaintiff and asked him to provide
receipts for his store goods. (Id.) Plaintiff gave
them the property sheets, but the officers told him property
sheets are not receipts and accused Plaintiff of stealing the
goods. (Id.) The officers made Plaintiff “go
back and forth” while the other inmates watched.
(Id.) Officers returned some of the goods to
Plaintiff but kept the rest for themselves without providing
Plaintiff with a receipt. (Id.) Plaintiff attempted
to explain he obtained the goods from other inmates at HSP,
but the officers mocked him for being Haitian and not
speaking English, cursed at him, threatened to write a
disciplinary report against him for stealing the goods, and
threatened to put him in an administrative segregation
isolation holding cell. (Id.) Officer Smith pointed
a stun gun at Plaintiff, threatened to shoot him, told him
not to touch her food, and threatened to “lock him
officers did not treat the American inmates like Plaintiff,
even though most did not have receipts or inmate personal
property sheets, and allowed them to keep their food without
any problem. (Id. at 8.) The officers also called
Plaintiff an illegal immigrant and said “Trump will
deport you from our country and sen[d] you back to your poor
country Haiti.” (Id.) The officers asked
Plaintiff about his religious beliefs. (Id.)
Plaintiff told them he is “Christian Catholic, ”
but the officers accused Plaintiff of practicing voodoo,
which made the inmates laugh at him. (Id.)
Defendants Hurst, Smith, and Scott were deliberately
indifferent to Plaintiff's health and safety and failed
to protect him like other prisoners in the same situation due
to his race, nationality, religion, crimes, conviction,
language, and immigration status. (Id. at 10.) These
Defendants also violated Georgia Department of Corrections
(“GDC”) policy by failing to provide Plaintiff
with a receipt for the goods they retained. (Id.)
November 22, 2018, Plaintiff told Warden Emmons about these
events and showed him the property receipts from HSP.
(Id. at 8.) Warden Emmons promised Plaintiff he
would make sure the officers returned his store goods, but he
did not follow up on his promise. (Id.) Warden
Emmons could have prevented the officers' misconduct by
reviewing the video recording of the gymnasium, but he did
not do so. (Id. at 12.) Instead, Warden Emmons
cursed at Plaintiff, told him he did not care, and told him
to get out of his office. (Id.) Warden Emmons was
deliberately indifferent to Plaintiff's health and safety
and failed to protect him like similarly situated prisoners.
(Id. at 11.)
same day, Plaintiff wrote a grievance against the officers
concerning the misconduct. (Id. at 8.) Plaintiff
attempted to submit the grievance to Defendant Jackson, but
she refused to sign the grievance for retaliatory purposes.
(Id.) Defendant Jackson threatened to write a
disciplinary report for the stolen goods and put Plaintiff in
isolation if he submitted the grievance against the officers.
(Id.) Defendant Jackson called the officers into the
room, and they cursed at and insulted Plaintiff and
threatened to take him to the hold and beat him to death if
he filed the grievance. (Id.) After they left,
another counselor accepted the grievance from Plaintiff and
explained Defendant Jackson should have accepted the
grievance and did not do so because it related to two of the
officers. (Id. at 8-9.) Defendant Jackson was
deliberately indifferent to Plaintiff's health and safety
and failed to protect him like similarly situated prisoners
based on retaliation. (Id. at 11.)
March 27, 2017, through April 8, 2017, Defendant Granison
intentionally denied Plaintiff “diet religious
vegeteri[an] trays” containing no meat, fish, or eggs.
(Id. at 9, 11.) Another officer instructed Defendant
Granison to provide Plaintiff with meals without meat because
he does not eat meat, fish, or eggs. (Id. at 9.)
Plaintiff starved for thirteen days. (Id.) Defendant
Granison insulted and harassed Plaintiff every time he was in
the kitchen, cursed him, and questioned his dietary
restrictions. (Id.) On April 9, 2017, a JSP captain
was in the kitchen with the sergeant, who oversees the
kitchen. (Id.) The sergeant explained Defendant
Granison's actions toward Plaintiff to the captain, and
the captain called the warden, who immediately came to the
kitchen, told Defendant Granison she was wrong, and
instructed her to give Plaintiff a meal tray without meat,
fish, and eggs for every meal because Plaintiff is
vegetarian. (Id.) Defendant Granison was
deliberately indifferent to Plaintiff's health and
safety, failed to protect him like similarly situated
prisoners, and acted out of retaliation and racial
discrimination. (Id. at 11.)
April 5, 2018, Plaintiff was transferred back to JSP for a
court date on April 10, 2018. (Id. at 9.) Warden
Caldwell threatened to punish Plaintiff for the grievances
and lawsuit filed against the other Defendants.
(Id.) Warden Caldwell had officers place Plaintiff
in a holding cell for administrative segregation isolation
for twenty-one days with a Blood gang member, who had
recently stabbed another inmate, as a means for Plaintiff to
be injured. (Id.) Plaintiff did not receive a
blanket, sheet, pillow, or change of clothes, and slept on a
dirty mattress. (Id.) Warden Caldwell instructed
Defendant Granison not to provide vegetarian trays to
Plaintiff. (Id.) Some days, Plaintiff did not
receive a meal and occasionally went three to four days
without a shower. (Id.) The cell was unsanitary
because the bathroom would overflow and not drain for days,
leaving feces on the floor. (Id. at 10.) Plaintiff
starved for twenty-one days in retribution for his grievances
and lawsuit. (Id.) Warden Caldwell also retaliated
by intentionally withholding Plaintiff's application for
clemency or commutation and never sent it to the state parole
board. (Id.) The board would have granted him
pardon, clemency, or commutation early if they received the
application. (Id.) Warden Caldwell was deliberately
indifferent to Plaintiff's health and safety and failed
to protect him like similarly situated prisoners.
(Id. at 12.)
result of Defendants' actions, Plaintiff suffered
starvation, humiliation, physical injuries, migraine
headaches, stomachaches, dizziness, extreme emotional
distress, and mental anguish. (Id.) Plaintiff was
transferred to WSP from JSP out of retaliation.
(Id.) Plaintiff's injuries resulted from GDC and
Wardens Emmons and Caldwell failing to train their officers.
Legal Standard for Screening
amended 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. § 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, 327
(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 amended
complaint must “state a claim for 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
unadorned, the defendant unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. An
amended 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 enhancement.'”
Id. (quoting Twombly, 550 U.S. at 555,
557). In short, the amended complaint must provide a
“‘plain statement' possess[ing] enough heft
to ‘sho[w] that the pleader is entitled to
relief.'” Twombly, 550 U.S. At 557
(quoting Fed.R.Civ.P. 8(a)(2)).
the court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, this liberal
construction does not mean that the court has a duty to
re-write the amended complaint. Snow v. DirecTV,
Inc., 450 F.3d 1314, 1320 (11th Cir. 2006).
Plaintiff Fails to State a Due Process Claim Against
Defendants Smith, Hurst, and Scott for Deprivation of
argues Defendant Smith, Hurst, and Scott violated his
constitutional rights by taking his store goods during the
intake process. The Fourteenth Amendment does not protect
against all deprivations of property, only against
deprivations that occur “without due process of
law.” Parratt v. Taylor, 451 U.S. 527, 537
(1981), overruled on other grounds, Daniels v.
Williams, 474 U.S. 327, 330-31 (1986). Georgia has
created a civil cause of action for the wrongful deprivation
of personal property. O.C.G.A. § 51-10-1. This statutory
provision covers the unauthorized deprivation of an
inmate's property by prison officials. Grant v.
Newsome, 411 S.E.2d 796, 799 (Ga.App. 1991). The
statutory cause of action constitutes an adequate
post-deprivation remedy under Parratt. See Byrd
v. Stewart, 811 F.2d 554, 555 n.1 (11th Cir. 1987).
Thus, Plaintiff has an adequate remedy at State law, and he
fails to state a valid § 1983 due process claim based on
the deprivation of his property.
amended complaint, Plaintiff does not raise any state law
claims based on Defendants' alleged actions.
(See doc. no. 41.) Indeed, in his February 4, 2019
objections, Plaintiff asks the Court to remand the entire
case to state court to consider any possible state claims.
However, Plaintiff's request to remand is procedurally
improper. See § IV, infra.
Furthermore, to the extent Plaintiff seeks to bring state law
claims based on these allegations, the Court should decline
to exercise supplemental jurisdiction over the state law
claims if these Defendants are dismissed from this lawsuit,
as the Court recommends herein. Accordingly, Plaintiff may,
if he chooses, pursue any state law remedies based on the
alleged deprivation of property in state court.
Plaintiff Fails to State a Claim Based on Allegations of
Insults and Threats by Defendants
attempts to bring Eighth Amendment claims against Defendants
Smith, Hurst, Scott, Foreman, Jackson, Granison, and Caldwell
for using insulting and threatening language against him
based on his race and nationality. (Doc. no. 41, pp. 7-9.)
However, mere “allegations of verbal abuse and threats
by prison officers” are not sufficient to state an
Eighth Amendment claim. Hernandez v. Fla. Dep't of
Corr., 281 Fed.Appx. 862, 866 (11th Cir. 2008)
(dismissing plaintiff's Eighth Amendment claim because
“verbal abuse alone is insufficient to state a
constitutional claim”) (citing Edwards v.
Gilbert, 867 F.3d 1271, 1274 n.1 (11th Cir. 1989)).
Additionally, “derogatory, demeaning, profane,
threatening, or abusive comments made by an officer to an
inmate, no matter how repugnant or professional, do not rise
to the level of a constitutional violation.”
Leonard v. Scott, No. 17-14248-CIV-ROSENBERG, 2017
WL 8772149, at *9 (S.D. Fla. Oct. 6, 2017). Accordingly,
fails to state an Eighth Amendment claim against these
Defendants for their insulting and threatening language.
Plaintiff Fails to State an Equal Protection Claim
establish an equal protection claim, a prisoner must
demonstrate (1) he is similarly situated with other prisoners
who received more favorable treatment; and (2) his
discriminatory treatment was based on some constitutionally
protected interest such as race.” Jones v.
Ray, 279 F.3d 944, 946-47 (11th Cir. 2001); see also
Elston v. Talladega County Bd. of Educ., 997 F.2d 1394,
1406 (11th Cir. 1993) (requiring plaintiff to demonstrate
challenged action was motivated by intent to discriminate in
order to establish equal protection violation). A
“class of one” exists where a plaintiff has been
intentionally treated differently from others similarly
situated without justification. Thorne v. Chairperson
Fla. Parole Comm'n, 427 F App'x 765, 771 (11th
Cir. 2011) (citing Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000)). “To be ‘similarly
situated,' the comparators must be prima facie identical
in all relevant respects.” Id. (internal
quotations omitted) (quoting Grider v. City of Auburn,
Ala., 618 F.3d 1240, 1264 (11th Cir. 2010)).
Furthermore, a plaintiff must “describe the
comparator's characteristics ‘that would be
relevant to an objectively reasonable governmental
decisionmaker'” in detail. Alvarez v. Sec'y
Fla. Dep't of Corr, 646 Fed.Appx. 858, 863-64 (11th
Cir. 2016) (quoting Griffin Industries, Inc. v.
Irvin, 496 F.3d 1189, 1207 (11th Cir. 2007).
does not establish an equal protection claim against
Defendants Smith, Hurst, and Scott based on their actions
during the intake process. Plaintiff alleges he informed the
officers he did not have receipts for the store goods because
he received them from other inmates at HSP. (Doc. no. 41, p.
7.) While Plaintiff alleges some other inmates also had
numerous store goods and did not have receipts for them, he
does not allege they received the goods from other inmates
instead of purchasing the goods themselves. (Id.)
Indeed, Plaintiff does not allege any facts concerning from
where the other inmates received their goods. This
characteristic would have been relevant to an objectively
reasonable governmental decisionmaker, as it casts doubt on
whether Plaintiff was in proper possession of the store
goods. In fact, Plaintiff alleges the officers determined the
store goods were stolen based on their discussion with
Plaintiff and his explanation of receiving the goods from
other inmates rather than purchasing them himself.
(Id. at 7, 10-11.) The connection between
Plaintiff's statements about the origin of the store
goods and the officers' conclusion the goods were stolen
is strengthened by the fact Plaintiff did not allege the
officers suspected any of the other inmates' store goods
to have been stolen. Thus, Plaintiff does not establish the
other prisoners were similarly situated because he failed to
describe relevant characteristics of comparators; namely,
whether they also received their store goods from other
inmates instead of the inmate store. In short,
Plaintiff's allegations fail to establish he was treated
differently from other similarly situated individuals and
fails to state an equal protection claim against Defendants
Smith, Hurst, and Scott.
Plaintiff's allegations regarding: (1) Warden
Emmons's alleged failure to remedy the officers'
actions; (2) Defendant Granison's alleged failure to give
Plaintiff vegetarian meals, and (3) Defendant Jackson's
alleged refusal to sign Plaintiff's grievance form,
Plaintiff does not allege facts suggesting there were any
comparators whatsoever, let alone any that were similarly
situated to Plaintiff and received more favorable treatment.
Furthermore, Plaintiff does not allege facts suggesting
Defendants Emmons and Jackson's behavior was
discriminatory based on any protected class. In fact,
Plaintiff indicates Defendant Jackson's actions were
caused by her relationship with the intake officers, not
based on a discriminatory motive. (Doc. no. 41, pp. 8-9.)
Accordingly, Plaintiff fails to state an equal protection
claim against Defendants Emmons, Granison, and Jackson.
Plaintiff Fails to State a Claim Against Defendants Smith,
Hurst, Scott, Jackson, and Granison for Their Alleged
seeks to bring a claim against Defendants Smith, Hurst,
Scott, and Jackson for threatening him with bodily harm or
death if Plaintiff filed a grievance based on Defendants
Smith, Hurst, and Scott's actions during the intake
process. (Doc. no. 41, p. 8.) Additionally, Plaintiff alleges
Defendant Granison retaliated against him for filing
grievances by denying him vegetarian meals. (Id. at
state a First Amendment retaliation claim based on a threat,
a plaintiff must allege “‘(1) his speech was
constitutionally protected; (2) [he] 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.'” Hoever v. Hampton, No.
4:14cv273-WS/CAS, 2016 WL 3647596, at *3 (N.D. Fla. May 19,
2016) (quoting Smith v. Mosley, 532 F.3d 1270, 1276
(11th Cir. 2008)). However, “threats that are not
carried out and that do not deter a plaintiff from engaging
in speech are not actionable as retaliation.”
Bishop v. McLaughlin, No. 5:11-CV-107(MTT), 2012 WL
1029507, at *4 (M.D. Ga. Jan. 23, 2012), adopted in part
by 2012 WL 1029499, at *8 (M.D. Ga. Mar. 26, 2012)
(citing Riccard v. Prudential Ins. Co., 307 F.3d
1277, 1292 n.13 (11th Cir. 2002)).
Plaintiff clearly determined Defendants Smith, Hurst, Scott,
and Jackson's alleged threats were not legitimate,
because Plaintiff alleges he filed the grievance with another
counselor immediately thereafter. (Doc. no. 41, pp. 8-9.)
Because of Plaintiff's immediate filing, the Court may
infer Defendants' threats were not enough to deter a
person of ordinary firmness from filing the grievance.
Moreover, Plaintiff does not allege these Defendants
attempted to carry out the alleged threats after he filed the
grievance. Finally, Plaintiff alleges no facts suggesting
Defendant Granison was aware of any grievances or lawsuits
filed by Plaintiff. (Id. at 9.) Thus, Plaintiff
fails to establish a causal connection between Plaintiff
filing grievances and Defendant Granison's actions.
Accordingly, Plaintiff fails to state either a First
Amendment claim against Defendants based on their alleged
Plaintiff Fails to State a Claim Based on an Alleged
Violation of Prison Regulations
alleges Defendant Hurst, Smith, and Scott's failure to
provide Plaintiff a receipt for the store goods they retained
violated Georgia Department of Corrections polices. (Doc. no.
41, p. 10.) An allegation of non-compliance with a prison
regulation by prison officials is not, in itself, sufficient
to give rise to a claim upon which relief may be granted.
See Sandin v. Conner, 515 U.S. 472, 481-82 (1995)
(noting many prison regulations are “primarily designed
to guide correctional officers in the administration of a
prison” and “such regulations are not designed to
confer rights on inmates); Taylor v. White, Civ. No.
11-0377-CG-N, 2012 WL 404588, at *5 (S.D. Ala. Jan. 10, 2012)
(“A claim based on a prison official's failure to
follow prison regulations or state regulations, without more,
simply does not state a claim for deprivation of a
constitutional right.”), adopted by, 2012 WL
403849 (S.D. Ala. Feb. 7, 2012). Accordingly, Plaintiff has
failed to state a separate claim upon which relief may be
granted based on any alleged violation of Georgia Department
of Corrections policies.
Plaintiff Fails to State an Eighth Amendment Use of Force
Claim Against Defendant Smith
fails to state an Eighth Amendment use of force claim based
on his allegations Defendant Smith pointed a taser at him and
threatened to shoot him if he touched the store goods the
officers had taken from him. “[T]he use of force in a
prison setting is legitimate when it is applied in good faith
to maintain discipline and is not applied maliciously and
sadistically to cause harm.” Ledlow v. Givens,
500 Fed.Appx. 910, 912 (11th Cir. 2012) (citing Hudson v.
McMillian, 503 U.S. 1, 6 (1992)). “The Supreme
Court has outlined four factors in determining whether the
application of force by a jail official was malicious or
sadistic: (1) the need for the application of force; (2) the
relationship between that need and the amount of force used;
(3) the threat reasonably perceived by responsible officials;
and (4) any efforts made to temper the severity of the
forceful response. Id. at 912-913 (citing
Whitley v. Albers, 475 U.S. 312, 321 (1986)).
does not allege actual force, but instead merely a threat of
force to ensure Plaintiff's compliance with the
officers' directives. While the Eleventh Circuit has
indicated an excessive force claim based on an
“immediate, malicious threat of electric shock . . .
would not be indisputably meritless, ” Bilal v.
Driver, 251 F.3d 1346, 1349 (11th Cir. 2001), Defendant
Smith's alleged threat was not malicious but a good faith
attempt to maintain discipline. Based on Plaintiff's
allegations, the four officers were apparently alone in a
room with sixteen inmates, who had just arrived from another
prison and were in possession of items the officers had not
yet inventoried, and Plaintiff continued to dispute ownership
of the goods despite the officer's decision. (Doc. no.
41, p. 7.) Indeed, Plaintiff alleges he continued to argue
with the officers about how he came into possession of the
store goods after the officer returned some of the store
goods and retained the remainder under suspicion they were
stolen. (Id.) In this situation, it would not have
unreasonable for Defendant Smith to draw her taser and
threaten its use in order to prevent Plaintiff from
attempting to recover the goods from the officers.
Accordingly, Plaintiff cannot state an excessive force claim
based on Defendant Smith's alleged threat because it was
made in good faith to maintain discipline during the intake
process. Ledlow, 500 Fed.Appx. at 912.
Plaintiff Fails to State a Valid Claim ...