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Wimberly v. Hutchingson

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

March 27, 2019

LEONARD WIMBERLY, JR., Plaintiff,
v.
JOSEPH HUTCHINGSON, in his individual capacity, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff brought this 42 U.S.C. § 1983 action against Defendant Hutchingson while incarcerated at Georgia State Prison in Reidsville, Georgia, to challenge certain conditions of his confinement. Doc. 1. Plaintiff also submitted a motion to proceed in forma pauperis, which this Court granted. Docs. 2, 9. After the requisite frivolity review, I FIND Plaintiff sets forth colorable retaliation and deliberate indifference claims against Defendant Hutchingson. However, I RECOMMEND the Court DISMISS Plaintiff's request for compensatory and punitive damages. Accordingly, the Court DIRECTS the United States Marshal to serve Defendant Hutchingson with a copy of Plaintiff's Complaint, doc. 1, and this Order without prepayment of cost. The Court also DIRECTS the Clerk of Court to serve a copy of this Report and Recommendation upon Plaintiff.

         BACKGROUND[1]

         Plaintiff alleges that Defendant has deliberately and intentionally engaged in a pattern and practice of mistreatment and showed deliberate indifference to Plaintiff's safety as part of Defendant's effort to retaliate against Plaintiff for filing previous lawsuits and grievances. Doc. 1 at 5-7. Plaintiff alleges that Defendant denied him new clothing in retaliation for the grievances and lawsuits Plaintiff filed. Id. at 6. Secondly, Defendant ensured Plaintiff would be “demoted” from phase three to phase one of the Tier II program during his 90-day review on November 3, 2017, even though Plaintiff had not received any negative comments in his performance sheets. Id. at 6-7.

         Plaintiff also alleges that Defendant Hutchingson, the manager of the unit where Plaintiff was housed, ordered Plaintiff be moved to a cell with an inmate who previously assaulted Plaintiff (“inmate Mobley”) on August 16, 2016. Id. at 5. Before reassigning housing, Defendant Hutchinson was responsible for ensuring that new housing assignments did not group together inmates who had documented disciplinary problems with each other. Id. at 6. Though Defendant Hutchingson knew that inmate Mobley had assaulted Plaintiff on May 5, 2015, and that inmate Mobley received disciplinary report after that attack, Defendant Hutchingson intentionally moved Plaintiff to inmate Mobley's cell to retaliate against Plaintiff. Id. at 5-6. When Corrections Officer Tiffany Henry, who is not a Defendant in this action, brought Plaintiff to Inmate Mobley's cell, inmate Mobley rushed at Plaintiff, forcing Plaintiff to defend himself. Id. Plaintiff sustained no physical injuries from this attack, but he now suffers from post-traumatic stress disorder. Id. at 6. As relief, Plaintiff seeks a declaratory judgment, prospective and equitable relief, $25, 000 in compensatory damages, $25, 000 in punitive damages, and all other “necessary and appropriate relief.” Id. at 8.

         STANDARD OF REVIEW

         Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. 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 his assets and 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, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii).

         When reviewing a complaint on an application to proceed in forma pauperis, the Court is guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. 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 § 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 § 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). 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 . . . .”) (emphasis omitted) (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 Retaliation Claim

         “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)). “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.” Id. “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)).

         Liberally construing Plaintiff's Complaint, the Court finds Plaintiff has stated a plausible retaliation claim against Defendant Hutchingson. Plaintiff describes various acts of retaliation because he submitted grievances and filed a lawsuit which alleged that prison officials violated the prison's internal policies and his constitutional rights. Plaintiff's lawsuit and grievances are constitutionally protected speech. Accordingly, because Plaintiff alleges that he ...


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