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Anderson v. Tarver

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

May 21, 2019

JESSE GUNTER ANDERSON, JR., Plaintiff,
v.
SERGEANT TARVER, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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. 9.[1] 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.[2] 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.

         BACKGROUND[3]

         On or 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).[4] 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.

         Plaintiff 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.[5] 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.

         Specifically, 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.[6] 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.”[7] 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.

         As 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.”[8]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.[9] Id.

         STANDARD OF REVIEW

         Plaintiff 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).

         The 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. 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 . . . .” (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 Motion to Amend

         On 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).

         In his Motion, Plaintiff requests leave of court to “file an Amended Complaint adding some parties and correcting the spelling of a Defendant.”[10] 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.

         II. Defendant Meriwhether

         To 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, the-defendant-unlawfully-harmed-me accusation.” 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 [d]efendants”).

         Here, 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.

         III. Defendant Dozier

         Plaintiff 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 Cir. 2007)).

         Plaintiff 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 or ...


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