Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bacon v. Edwards

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

May 28, 2019

NICHOLAS S. BACON, Plaintiff,
v.
DAVID EDWARDS, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          Christopher L. Ray United States Magistrate Judge.

         Pro se plaintiff Nicholas Bacon, detained at Liberty County Jail, alleges in his 42 U.S.C. § 1983 Complaint that he has been subjected to excessive force and deprived of his First Amendment right to mail more than postcards. Doc. 1 at 5-6. The Court granted plaintiff's request to pursue his case in forma pauperis (IFP), doc. 3, and he returned the necessary forms. Docs. 4 & 5. The Court now screens the 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.[1]

         Bacon alleges that, while in an “unresistible state, ” Officer McCellond “shot” him in the back in August 2017. Doc. 1 at 5. At unspecified times in the past year, Bacon has further complained of “severe physical discomfort that is beyond acid reflux and constipation, ” perhaps as a result of being “shot” (he doesn't say). Id. Then, in March 2019, Sergeant Barber and Officers Larryman and Driggers caused another inmate to attack Bacon, leaving him injured. Id. He also complains that outgoing mail has been restricted to postcards since February 2019. Id. at 6. Bacon demands “reparation for damages caused during hostilities” and “compensation for mental unrest and bodily stress, ” as well as “a new trial, a fair trial and change of venue.” Id. at 7.

         I. Unnamed Defendants

         Administrator Edwards and Captain Bowman 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); see also Douglas v. Yates, 535 F.3d 1316, 1321-22 (11th Cir. 2008) (“While we do not require technical niceties in pleading, we must demand that the complaint state with some minimal particularity how overt acts of the defendant caused a legal wrong.”). 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 Complaint.

         II. Force Used

         Brown clearly asserts an excessive force claim against Officer McCellend. To allege excessive force by an officer in the course of executing an arrest, a plaintiff must assert that the officer's conduct was objectively “unreasonable.” Graham v. Connor, 490 U.S. 386, 395-97 (1989). Such a test looks not to the motivation of the particular officer, but instead examines whether a reasonable officer would have taken the same action. Id. at 397. “Determining whether the force used to effect a particular seizure is ‘reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396 (quotes and cites omitted).

Because “[t]he test of reasonableness under the Fourth Amendment is not capable of a precise definition or mechanical application, ” . . . its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Id. (cites omitted). The Court examines “the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balanc[ing] the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate.” McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009) (citing Scott v. Harris, 550 U.S. 372, 383 (2007)). “Although some amount of force is generally needed to subdue a suspect, the amount used must be reasonably proportionate to the need for force.” Smith v. LePage, 834 F.3d 1285, 1294 (11th Cir. 2016); see also Scott, 550 U.S. at 383 (observing that in determining whether the Fourth Amendment was violated, “we must still slosh our way through the factbound morass of ‘reasonableness.'”). Here, Bacon alleges that he was “shot” in the back while compliant and non-resistant. Taken as true, [2] as his allegations must be at this stage, and despite the defenses that McCelland might assert against Bacon's sere allegation of excessive force, that is enough to warrant a response.

         As to the jail staff that somehow stirred up violence against Bacon at the hands of another inmate and then watched, impassive, as the dramatics unfolded, “prison 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)).

         “An 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). Inciting another prisoner to violence and then standing by as that violence occurs, of course, fits the bill. Sergeant Barber, Officer Larryman, and Officer Driggers must also respond.

         III. Postcards

         Bacon's terse allegation that his First Amendment rights have been violated must be amended. He states, in total, that as of “February 11, 2019 a memo was placed in the dormitory that states all outgoing mail will be postcards only.” Doc. 1 at 6. He links this to difficulty with his legal rights, invoking his entitlement to “due process to a fair trial” - an access-to-the-courts and communications with counsel claim - but explicitly invokes the First Amendment. Id. at 6-7. Either way, the Court does not have enough information. See generally Al-Amin v. Smith, 511 F.3d 1317 (11th Cir. 2008) (analyzing legal mail violation under both access to courts and free speech).

         “Access to the courts is clearly a constitutional right, grounded in the First Amendment, the Article IV Privileges and Immunities Clause, the Fifth Amendment, and/or the Fourteenth Amendment.” Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (citing Christopher v. Harbury, 536 U.S. 403, 415 n. 12 (2002)). However, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.