United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
Christopher L. Ray, United States Magistrate Judge.
Andre Heaggins filed this 42 U.S.C. § 1983 action after
Calhoun State Prison Officer Aisha Thomas stood by and
watched while he was confronted and then attacked by fellow
inmate Theodore Emelle. Doc. 1 at 5. The Court, having
granted his request to pursue his case in forma
pauperis, doc. 8, and plaintiff having returned the
necessary forms, docs. 9 & 11, now screens his Complaint
pursuant to 28 U.S.C. § 1915A, which requires the
immediate dismissal of any pro se complaint that
fails to state at least one actionable claim against a
governmental entity or official.
alleges that one day, while he was reading his Bible
“as he did every morning, ” he made the mistake
of confronting fellow prisoner Emelle - who had been staring
at Heaggins “with a sinister expression on his face and
evil in his eyes” - by asking him if he was
“okay.” Doc. 1 at 5. After Emelle “began to
make a scene by talking loudly and being threatening, ”
plaintiff responded in kind, and the situation
“escalated.” Id. Plaintiff noticed
Officer Thomas watching the exchange, and also noticed her
retreat to the “control room” while the
inmates' verbal confrontation continued. Id. As
Heaggins realized the state of affairs was spiraling towards
a physical altercation, he left the area and went into a
different room. Id. at 6. Officer Thomas continued
watching, and did nothing as Emelle came into the room and
hit Heaggins in the left side of the head with a lock.
Id. Heaggins required 14 staples to close the wound.
Id. He seeks more than $500, 000 in punitive and
compensatory damages and unspecified “declaratory
judgment” and “preliminary injunction(s) on each
defendant.” Id. at 7.
officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.” Farmer
v. Brennan, 511 U.S. 825, 833 (1994) (quotes and cites
omitted). “It is not, however, every injury suffered by
one inmate at the hands of another that translates into a
constitutional liability for prison officials responsible for
the victim's safety.” Id. at 834. Merely
negligent failure to protect an inmate from attack does not
justify liability under § 1983. Brown v.
Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990).
“Prison officials must have been deliberately
indifferent to a known danger before we can say that their
failure to intervene offended ‘evolving standards of
decency,' thereby rising to the level of a constitutional
tort.” Id. (citing Estelle v. Gamble,
429 U.S. 97, 105-06 (1976)).
Eighth Amendment violation will occur when a substantial risk
of serious harm, of which the official is subjectively aware,
exists and the official does not ‘respond reasonably
to the risk[.]'” Marsh v. Butler County,
Ala., 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc),
quoting Farmer, 511 U.S. at 844. Prison officials
have a duty to take reasonable steps to intervene on behalf
of the victim of victim of an ongoing assault by another
inmate. Murphy v. Turpin, 159 Fed.Appx. 945, 948
(11th Cir. 2005). “However, in order for liability to
attach, the officers must have been in a position to
intervene.” Terry v. Bailey, 376 Fed.Appx.
894, 896 (11th Cir. 2010).
plaintiff levying a failure-to-intervene claim must show that
(1) another inmate's physical assault created a
substantial, objective risk of injury, (2) of which a
defendant is subjectively aware, (3) the defendant was in a
position to intervene, and (4) the defendant did not respond
reasonably to the risk of injury. Johnson v. Boyd,
568 Fed.Appx. 719, 724-25 (11th Cir. 2014). Liability
attaches only if the officer “‘was physically
able and had a realistic chance to intervene and act in time
to protect the inmate plaintiff.'” Smith v.
Andrews, 2016 WL 6818755 at *4 (S.D. Ga. Nov. 16, 2016).
“Regardless of the presence or absence of a weapon in
the hands of the attacking inmates, ‘no rule of
constitutional law requires unarmed officials to endanger
their own safety in order to protect a prison inmate
threatened with physical violence.'” Seals v.
Marcus, 2013 WL 656873 at *8 (M.D. Ga. Jan. 25, 2013)
(quoting Longoria v. Texas, 473 F.3d 586, 594 (5th
Cir. 2006)); see also Prosser v. Ross, 70 F.3d 1005,
1008 (8th Cir. 1995) (“[P]rison guards have no
constitutional duty to intervene in the armed assault of one
inmate upon another when intervention would place the guards
in danger of physical harm.”); Winfield v.
Bass, 106 F.3d 525, 532 (4th Cir. 1997) (“[A]ll of
the authority of which we are aware leads to the conclusion
that such heroic measures are not constitutionally
allegations are straightforward. He got in a verbal
back-and-forth with another prisoner, things got heated, he
walked away to defuse the situation, and the other prisoner
came after him anyways. Officer Thomas saw the verbal
altercation and, while nothing physical had yet occurred,
moved to a “control room” where she remained when
things finally turned physical. He blames her for not
intervening while only words were being exchanged, since he
was struck in the side of the head and may have escaped such
injury had she been at his side instead.
liberally, as they must be at screening, Heaggins'
allegations warrant a response. His allegations imply that
Officer Thomas had reason to believe that Heaggins was in
imminent danger. Brown, 894 F.2d at 1537 (a prison
official must be faced with a known risk of injury that rises
to the level of a “strong likelihood rather than a mere
possibility” before his failure to protect an inmate
can be said to constitute deliberate indifference),
Murphy, 159 Fed.Appx. at 948 (same); Edwards v.
Gilbert, 867 F.2d 1271, 1276 (11th Cir. 1989) (same).
Emelle engaged plaintiff in a “heated verbal
confrontation where threats of injury were made” and
followed plaintiff when he fled. When Emelle followed into
the media room, it is unclear whether Thomas had time to
respond and break up the fight, but (at least as pleaded) it
appears that she both was physically able to act but declined
to intervene. She must respond.
Morales and Georgia Department of Corrections Commissioner
Dozier, however, are not mentioned by name anywhere in the
Complaint. The Court must conclude that they are named solely
because of their job titles. § 1983 claims, however,
require an allegation of a causal connection between a
defendant's acts or omissions and the alleged
constitutional deprivation. See Zalter v.
Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). Such
claims cannot be based upon theories of respondeat
superior or vicarious liability. See Polk Cnty. v.
Dodson, 454 U.S. 312, 325 (1981); Monell v.
Dep't of Soc. Servs. of New York, 436 U.S. 658, 691
(1978); Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990). Their mere supervisory roles, without allegations
connecting them to the allegedly unconstitutional
acts/omissions of the Complaint, are insufficient to state a
claim. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice” to state a claim upon which relief can be
granted). Both should be DISMISSED from the
should Heaggins' fellow inmate, Emelle. To be liable
under § 1983, a defendant must be a “state
actor.” Private parties qualify as state actors for
§ 1983 purposes only in “rare
circumstances.” Harvey v. Harvey, 949 F.2d
1127, 1130 (11th Cir. 1992); see Rayburn ex rel. Rayburn
v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001) (a
private entity may be liable as a “state actor”
for a constitutional violation only in the following
circumstances: (1) “the State has coerced or at least
significantly encouraged the action alleged to violate the
Constitution”; (2) “the private parties performed
a public function that was traditionally the exclusive
prerogative of the State”; or (3) “the State had
so far insinuated itself into a position of interdependence
with the [private parties] that it was a joint participant in
the enterprise[ ].”). And plaintiff has not alleged any
circumstance that might permit him to assert claims against
Emelle. C.f. Bell v. Brown, 2017 WL 3473845 at *4
(S.D. Ga. Aug. 11, 2017) (a “trustee” inmate
“who carried out the orders of correctional
officers” is susceptible to suit under § 1983,
because plaintiff had “plausibly alleged that
‘the State . . . significantly encouraged the action
alleged to violate the Constitution.”).
conclusion, Warden Morales, Commissioner Dozier, and Emelle
should be DISMISSED from the
Complaint. The Clerk, however, is
DIRECTED to forward a copy of this Order
along with plaintiff's Complaint to the Marshal for
service upon Officer Thomas. Meanwhile, it is time for
plaintiff to pay his filing fee. Since his PLRA paperwork
reflects an average monthly balance of $47.16, doc. 9, he
owes an initial partial filing fee of $9.43. See 28
U.S.C. § 1915(b)(1) (requiring an initial fee assessment
“when funds exist”). His custodian (or designee)
shall therefore remit $9.43 to the Court and shall set aside
and remit 20 percent of all future deposits to his account,
then forward those funds to the Clerk each time the set aside
amount reaches $10.00, until the balance of the Court's
$350.00 filing fee has been paid in full.
Clerk is DIRECTED to send this Report and
Recommendation (R&R) to plaintiff's account custodian
immediately, as this payment directive is nondispositive
within the meaning of Fed.R.Civ.P. 72(a), so no Rule 72(b)
adoption is required. In the event he is transferred to
another institution, his present custodian shall forward a
copy of this R&R and all financial information concerning
payment of the filing fee and costs in this case to
plaintiff's new custodian. The balance due from plaintiff
shall be collected by the custodian at his next institution
in accordance with the terms of the payment directive portion
of this Order.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge's Report
and Recommendations.” Any request for additional time
to file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
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