United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
while incarcerated at Georgia State Prison in Reidsville,
Georgia, brought this action under 42 U.S.C. § 1983 to
challenge certain conditions of his confinement. Doc. 1.
Plaintiff also asks the Court for leave to amend his
Complaint. Doc. 9. Having considered this request, the Court
GRANTS Plaintiff's Motion to Amend, doc.
After the requisite frivolity review under 28 U.S.C. §
1915A, I RECOMMEND the Court
DISMISS Plaintiff's Eighth Amendment and
equal protection claims. Next, I RECOMMEND
the Court DISMISS Plaintiff's claims
against Defendant Dozier and Defendant Meriwhether entirely
and DISMISS Plaintiff's claims for money
damages against Defendant Tarver in her official capacity. I
also RECOMMEND the Court
DISMISS Plaintiff's requests for
compensatory and punitive damages pursuant to §
1997e(e). The Court, however, FINDS
Plaintiff sets forth a non-frivolous retaliation claim
against Defendant Tarver in her individual
capacity. Consequently, a copy of Plaintiff's
Complaint, doc. 1, a copy of Plaintiff's Amended
Complaint, doc. 9, and a copy of this Order shall be served
upon Defendant Tarver by the United States Marshal without
prepayment of cost.
around July 3, 2017, Plaintiff was transferred to Georgia
State Prison for medical treatment. Doc. 1 at 5. Dr. Paul
King, who is not named as a Defendant in this action,
performed a neurological operation on Plaintiff around June
5, 2017 which left Plaintiff with hemiparesis (weakness on
one side of his body). Id. Plaintiff requires a cane to
move around and cannot perform various physical tasks, such
as carrying his own food tray, without assistance.
Id. at 5-6. Plaintiff alleges that since his arrival
at Georgia State Prison, Defendant Tarver has continually
harassed and insulted him and denied Plaintiff assistance in
performing various tasks which Plaintiff cannot perform for
himself due to his disability. Id. at 5-7.
details several incidents of threats and verbal harassment
from Defendant Tarver (including profanity and racial slurs
directed at Plaintiff) for which he seeks redress.
Id. at 5-7. At least some of this harassment
occurred when Plaintiff's disability hindered his ability
to physically comply with Defendant Tarver's
orders. Id. Plaintiff alleges that other
staff members and inmates witnessed Defendant Tarver's
harassment of him and that he had “numerous”
informal discussions about the harassment with Defendant
Tarver's supervisor as well as the ombudsman from the
Georgia Department of Corrections. Id. at 5-6.
Plaintiff also alleges that Defendant Tarver retaliated
against him after he filed a grievance about her treatment of
him in August 2017. Id. Plaintiff alleges that,
after filing the grievance Defendant Tarver, refused to
assist Plaintiff or to allow other inmates to assist
Plaintiff with physical tasks (such as carrying a food tray)
which Plaintiff cannot perform by himself. Id.
Plaintiff alleges that around 6:00 a.m. on November 4, 2017,
Defendant Tarver was supervising the inmates in
Plaintiff's assigned dormitory as they went to the
kitchens for breakfast. Id. at 6-7. Plaintiff alleges
Defendant Tarver stated that, due to the grievance Plaintiff
filed against her, Plaintiff would “not eat
breakfast” and forbade other inmates from
“assist[ing] Plaintiff with his breakfast.”
Id. When Plaintiff approached Defendant Tarver and
asked her to help him with his food tray, Defendant Tarver
replied, “Fuck you.” Id. Around 7:00
a.m., Defendant Tarver ordered Plaintiff “to return to
his housing unit without morning breakfast” and
threatened to move him to the G-Unit. Id. Finally,
Plaintiff asserts that Defendant Tarver is part of a
well-organized network of prison officials “known to
bring contraband to prison gang members” and that he is
in fear for his life due to his belief that Defendant Tarver
will somehow use her role in this network to provoke other
inmates to attack him. Id.
relief, Plaintiff requests a declaratory judgment that
Defendant Tarver violated his Fourth, Fifth, Eighth, and
Fourteenth Amendment rights as well as “other state and
administrative laws and mandates.”Id. at 8.
Additionally, he requests the Court require Defendant Tarver
undergo a psychiatric evaluation and that she be immediately
removed from all job duties where “prisoners,
especially handicap[ped] prisoners” are present.
Id. Finally, Plaintiff requests compensatory damages
for pain and suffering in the amount of one million dollars
against Defendant Tarver in her official capacity and, as
punitive damages from Defendant Tarver in her individual
capacity, that $150.00 per week from Defendant Tarver's
salary be donated to the prison law library for the remainder
of Defendant Tarver's career. Id.
is bringing 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, malicious, or if it fails to state a
claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)-(ii). Additionally, under 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, 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).
Court looks to the instructions for pleadings 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 §
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.
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)).
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
Plaintiff's Motion to Amend
October 25, 2018, Plaintiff filed a Motion asking the Court
to grant him leave to amend his Complaint. Doc. 9. “A
plaintiff has a right to amend a complaint once as a matter
of course so long as no responsive pleading has been
filed.” Toenniges v. Georgia Dep't of
Corr., 502 Fed.Appx. 888, 889 (11th Cir. 2012).
“[P]arties may be added or dropped when an amendment is
made to a complaint as a matter of course.”
McLellan v. Miss. Power & Light Co., 526 F.2d
870 (5th Cir. 1976), modified on other grounds, 545
F.2d 919 (5th Cir. 1977); Henry v. Youngstown
Buick/Pont/GMAC Truck Co., No. 1:11-cv-3464, 2012 WL
13009227, at *1 (N.D.Ga. May 30, 2012); Pretty Punch
Shoppettes, Inc. v. Creative Wonders, Inc., 750 F.Supp.
487, 493 (M.D. Fla. 1990). While a represented party
“waives his right to amend his complaint as a matter of
course when . . . counsel files an unnecessary motion for
leave to amend, ” a pro se litigant retains the right
to amend without court permission even when leave of court is
improperly requested. Hoke v. Lyle, 716 Fed.Appx.
930, 931 (11th Cir. 2018); Toenniges, 502 Fed.Appx.
at 889; Dollar v. Coweta Cty. Sheriff Office, 446
Fed.Appx. 248, 249 n.1 (11th Cir. 2011); Brown v.
Johnson, 387 F.3d 1344, 1348-49 (11th Cir. 2004). Thus,
because Plaintiff's Complaint has “not yet been
served” on any Defendant and no Defendant has filed a
responsive pleading, Plaintiff may amend his Complaint once
as a matter of course without requesting permission from the
Court. Toenniges, 502 Fed.Appx. at 890; Oliver
v. Fuhrman, 695 Fed.Appx. 436, 439 (11th Cir. 2017);
see also Fed.R.Civ.P. 15(a)(1).
Motion, Plaintiff requests leave of court to “file an
Amended Complaint adding some parties and correcting the
spelling of a Defendant.” Doc. 9 at 1. In his
Motion, Plaintiff writes that he filed his Complaint against
one Defendant-“Defendant Carver”-but that he has
since learned that the correct spelling of that
Defendant's name is Defendant Tarver. Id. at 1.
Plaintiff also asks to add two additional Defendants: Gregory
Dozier, the former Commissioner of the Georgia Department of
Corrections; and Officer Meriwhether, a Department of
Corrections' employee at Autry State Prison in Pelham,
Georgia. Id. at 2. In consideration of these facts,
the Court GRANTS Plaintiff leave to amend.
state a claim against a defendant, a plaintiff must provide
“a short and plain statement of the claim showing that
[he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
While Rule 8 “does not require ‘detailed factual
allegations, '” to successfully state a claim, a
complaint must bring “more than an unadorned,
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). Moreover, the complaint must do more than
simply allege facts-it must show that each named defendant
was involved in at least one of the purported violations
asserted as claims. See id. at 678 (noting that
complaints must allege enough facts to show “more than
a sheer possibility that a defendant has acted
unlawfully”); Oliver v. Conner, No.
5:11-cv-72, 2011 WL 3878351, at *1 (S.D. Ga. Aug. 2, 2011)
(recommending dismissal when “[p]laintiff ma[d]e no
factual allegations in his Complaint against the named
Plaintiff adds Officer Meriwhether, an employee at Autry
State Prison, as a Defendant. Doc. 9. However,
Plaintiff's Complaint relates to actions which occurred
at Georgia State Prison. Doc. 1. Nowhere in Plaintiff's
pleadings does he assert any action or inaction performed by
Defendant Meriwhether. Thus, Plaintiff fails to state a claim
against Defendant Meriwhether. Consequentially, I
RECOMMEND the Court DISMISS
Defendant Meriwhether as a named Defendant in this action.
asserts claims against Defendant Dozier, the former
Commissioner of the Georgia Department of Corrections. In
§ 1983 actions, liability must be based on something
more than a defendant's supervisory position or a theory
of respondeat superior. 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. Braddy, 133 F.2d
at 802. In the Eleventh Circuit:
[t]o 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)
(citing West v. Tillman, 496 F.3d 1321, 1328 (11th
has failed to allege any facts supporting a § 1983 claim
against Defendant Dozier. Plaintiff alleges he had several
informal conversations with Defendant Tarver's
supervisors about Defendant Tarver's alleged harassment
of Plaintiff, but does not allege that he brought these
concerns to Defendant Dozier's attention. Doc. 1 at 5.
Plaintiff does not claim that he spoke with Defendant Dozier
personally, and he does not allege any facts showing that
Defendant Dozier had personal knowledge of Defendant
Tarver's alleged harassment or that Dozier directed or
knowingly failed to prevent it. Id. Finally, nothing
in Plaintiff's Complaint supports a finding that a custom
or policy caused the rights violations of which he complains