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Floyd v. Gibbs

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

September 10, 2019

KEVIN FLOYD, Plaintiff,
v.
BETTY GIBBS; and HARRY SIZEMORE, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Plaintiff brought this 42 U.S.C. § 1983 action while incarcerated at the Coffee Correctional Facility in Nicholls, Georgia, in order to challenge certain conditions of his confinement. Doc. 1. For the reasons below, I RECOMMEND the Court DISMISS Plaintiff's request for money damages against Defendants in their official capacities. However, Plaintiff's deliberate claim shall proceed against Defendants Gibbs and Sizemore. Consequently, a copy of Plaintiff's Complaint, doc. 1, and a copy of this Order shall be served upon Defendant Gibbs and Defendant Sizemore by the United States Marshal without prepayment of cost.

         BACKGROUND [1]

         Plaintiff suffers from two chronic medical conditions-lower spine spina bifida and scoliosis. Doc. 1 at 5-6. On May 30, 2017, Dr. G. Augustin, a medical doctor at the Coffee Correctional Facility (“CCF”), confirmed Plaintiff's diagnoses after viewing an x-ray. Id. Due to these medical conditions, Plaintiff was given a “bottom bunk profile” while at CCF. Id. Plaintiff's “bottom bunk profile” indicated to prison staff that he should be assigned only to a bottom bunk.[2]

         Plaintiff was housed in “segregation (the hole)” at CCF from October 11, 2016 until January 3, 2018. Id. On January 3, 2018, prison officials moved Plaintiff out of segregation and assigned him to a top bunk in dorm 8NN in building 8. Plaintiff spoke with Defendant Gibbs, but “she would not enforce [his] bottom bunk status, ” as that would necessitate moving another inmate out of a bottom bunk. Id. Plaintiff alleges Defendant Gibbs showed “preferential treatment” to some inmates in dorm 8NN because these inmates “were orderlies.” Id. Though those inmates did not possess a bottom bunk profile and Plaintiff did, Defendant Gibbs refused to reassign those inmates to a top bunk. Id. Plaintiff then complained to Defendant Sizemore, the unit manager. Id. Plaintiff alleges that “getting off and on the top bunk[] caused greater back pain and strain” and “made it difficult to even walk [for] any length of time-especially to chow across the yard.” Id. He experienced general difficulty moving and sleeping. Id.

         Plaintiff filed Grievance Number 260387 on February 5, 2018. Id. Assistant Warden Ricky Stone denied that grievance around February 23, 2018, and Plaintiff appealed. Id. Plaintiff alleges his appeal was denied. Id. at 5.

         On February 14, 2018, Dr. Augustin “reconfirmed” Plaintiff's bottom bunk profile.[3] Id. at 56. The next day, Defendant Gibbs moved Plaintiff “from dorm 8NN, where he was [assigned to] a top bunk, to dorm 8QQ, on a bottom bunk.” Id. Though Defendant Gibbs moved him, Plaintiff contends she “failed to remedy the issue-at-bar-the favoritism she showed un-profiled bottom bunk favorite inmates of hers.” Id. at 6.

         Plaintiff alleges Defendants' failure to immediately assign Plaintiff to a bottom bunk on January 3, 2018 and the 43-day delay in doing so constitute deliberate indifference to his medical needs. Plaintiff writes that this delay occurred only because Defendant Gibbs “did not want to upset her favorite, non-profiled inmates” by moving them to a top bunk in order to open space to move Plaintiff to a bottom bunk. Id.

         On April 2, 2018, Plaintiff filed this action against Defendant Gibbs and Sizemore. Doc. 1 at 4. As relief, Plaintiff requests: (1) Defendant Gibbs be assigned to work somewhere other than building 8, “as she has been in [that] building too long and shows favoritism and preferential treatment to select inmates”; (2) an injunction preventing retaliation against Plaintiff for filing this action; (3) $10, 750 in compensatory damages for the 43 days Plaintiff “was denied adequate medical care, [specifically] a bottom bunk for his back conditions, ” calculated at $250 per day; and (4) $21, 500 (twice the value of the compensatory damages requested) in punitive damages. Id. at 6.

         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). Additionally, pursuant to 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).

         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 . . . .” (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 ...


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