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Toles v. Shuemake

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

September 11, 2019

QUONTERIOUS TOLES, Plaintiff,
v.
RONNIE SHUEMAKE; FREDDY DAVIS; and SERGEANT MENDEZ, 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 Georgia State Prison in Reidsville, Georgia, challenging certain conditions of his confinement. Doc. 1 at 3. For the reasons below, I RECOMMEND the Court DISMISS Plaintiff's retaliation claim against Defendant Mendez and DENY Plaintiff in forma pauperis status on appeal. I RECOMMEND the Court DISMISS Plaintiff's claims for money damages against all Defendants in their official capacities. However, Plaintiff's request for release from administrative confinement shall proceed against Defendants in their official capacities. Additionally, I FIND the following claims shall proceed against Defendants in their individual capacities: (1) Plaintiff's excessive force claims against Defendants Shuemake and Mendez; (2) Plaintiff's failure to intervene claim against Defendant Davis; and (3) Plaintiff's deliberate indifference claim against Defendants Shuemake and Davis. Consequently, a copy of Plaintiff's Complaint, doc. 1, Amended Complaint, doc. 9, and a copy of this Order shall be served upon Defendants Shuemake, Davis, and Mendez by the United States Marshal without prepayment of cost.

         BACKGROUND[1]

         Plaintiff filed this action against Defendants Shuemake and Davis on September 27, 2018. Doc. 1. On December 19, 2018, Plaintiff moved to add Defendant Mendez as a party. Doc. 7. The Court granted Plaintiff's motion but deferred frivolity review and ordered Plaintiff to amend his Complaint. Doc. 8. Plaintiff filed his Amended Complaint on June 14, 2019. Doc. 9. In his Amended Complaint, Plaintiff brings the following claims: (1) excessive force against Defendants Shuemake and Mendez; (2) deliberate indifference to medical risk against Defendants Shuemake and Davis; (3) failure to intervene against Defendant Davis; and (4) retaliation against Defendant Mendez. Id.

         On June 25, 2018, Plaintiff experienced an epileptic seizure while in his cell (cell number 25 in building G2). Id. at 3-4. Defendant Shuemake and Defendant Davis approached the door to Plaintiff's cell. Id. Though Plaintiff was experiencing a seizure, Defendants Shuemake and Davis ordered him to come to the door and “cuff up.” Id. Plaintiff's cellmate tried to help Plaintiff stand. Id. Plaintiff contends that Defendant Shuemake then began to spray “a tactical agent” into the cell. Id. Defendant Davis stood next to Defendant Shuemake and “passed [him] more spray . . . .” Id. Though Plaintiff was “in an unaware state at first, ” he eventually noticed the presence of the chemical spray in his cell. Id. He started to scream that he had not done anything wrong and that he needed medical attention. Id.

         Plaintiff then ran to the back of his cell until he saw “the taser appear” in one of the Defendants' hands. Id. Plaintiff yelled, “I'm trying to cuff up!” Id. Defendant Shuemake told Plaintiff to “come cuff up before [he] change[s his] mind.” Id. Plaintiff approached the flap and placed his hands inside to allow Defendants to handcuff him. Id. Plaintiff “yell[ed] and cursed that the handcuffs were to[o] tight” and that he was sprayed “without cause.” Id.

         Defendants then took Plaintiff to the medical unit “for a use of force checkup.” Id. at 5- 6. Plaintiff reported burning eyes and trouble breathing. Id. During his appointment, Defendant Davis “yanked” Plaintiff's handcuffs, pulling Plaintiff up, and Defendant Shuemake told the medical staff, “‘F' him, he okay.” Id. Defendants then removed Plaintiff from the medical unit and took him to a strip cell in 1-East-3.[2] Id. However, Defendants refused to provide Plaintiff with a decontamination shower though residual spray remained on Plaintiff's “body and eyes.” Id.

         Defendants left Plaintiff in the strip cell. Id. Two or three hours later, Defendant Shuemake returned. Id. When he returned, Defendant Shuemake told “Ms. Brownlee (CO II)” to “walk off.”[3] Id. Then, Defendant Shuemake punched Plaintiff in the stomach and used his weight to push Plaintiff into the steel bed. Id. Defendant continued to punch Plaintiff in the stomach, back, and ribs for about 15 minutes. Id. Finally, Defendant Shuemake stopped, told Plaintiff “not to ‘F' with him, ” and closed the cell door. Id. Plaintiff remained in the strip cell for an additional two or three hours until Officers Steel and Heard escorted him back to his assigned cell. Id. at 7.

         About three months later, on September 15, 2018, at around 4:00 or 5:00 p.m., Defendant Mendez sprayed a “chemical agent” through the flap on the door of Plaintiff's cell. Id. While the precise circumstances are unclear, it appears Plaintiff did not immediately answer a statement, request, or order from a prison official. Id. at 8-9. Plaintiff writes that “everything was secured and locked, ” but Defendant Mendez “still . . . came to [his] door” and sprayed his cell. Id. Defendant Mendez yelled, “This is for Lieutenant.” Id. About an hour later, Defendant Mendez came back with Sergeant Mikell. Id. Sergeant Mikell told Plaintiff to cuff up, but Plaintiff saw a spray canister and a taser in Sergeant Mikell's hands and refused. Id. After Sergeant Mikell told Plaintiff to “shut up” and reassured Plaintiff that he would not be sprayed, Plaintiff came to the door. Id. The officers placed Plaintiff in restraints and escorted him to the K-1 Dorm. Id.

         On the way to the K-1 Dorm, the officers pushed Plaintiff against the wall in the hallway, which caused Plaintiff to become angry and yell. Id. Defendant Mendez then “punched [Plaintiff] with a closed fist, ” knocking Plaintiff “down and out.” Id. Defendant Mendez then looked at the camera and told Sergeant Mikell to say that Plaintiff spit on him. Id. Sergeant Mikell “did it.” Id. Plaintiff denies spitting on Defendant and writes that the video recordings will show he did not spit on anyone. Id. Defendant Mendez “got on top of [Plaintiff] and applied pressure to [his] head by pushing it into the floor.” Id. Defendant Mendez “got close to [Plaintiff's] ear” and said, “This is for Shuemake, bitch.” Id. at 10. Plaintiff was taken to medical and later escorted back to his cell. Id. Finally, Plaintiff alleges that because of this incident, he has been “subjected to excessive lockdown” and segregated from other inmates “for reasons unsupported by fact or cause.” Id. at 14.

         Plaintiff alleges he sustained multiple injuries, including a chipped tooth (from his seizure), busted lips and bruised ribs (from Defendant Shuemake), burning eyes and lungs (from the spray), and a swollen lip and eye (from Defendant Mendez).[4] Id. As relief, Plaintiff requests: (1) $15, 000 in compensatory damages; (2) $15, 000 in punitive damages; (3) $1, 000 in legal fees and court costs; and (4) release from “segregation isolation.” 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, 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).

         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 Amended Complaint, Doc. 9

         On June 5, 2019, the Court ordered Plaintiff to amend his Complaint. Doc. 8. The Court noted that it appeared that Plaintiff's pen ran out of ink while Plaintiff was writing his Complaint and that Plaintiff finished by using a pencil. Id. The Court found that a substantial portion of the Complaint was illegible. Id. The Court deferred conducting its requisite frivolity review and ordered Plaintiff to file an Amended Complaint. The Court cautioned Plaintiff that his Amended Complaint would supersede his original Complaint and he should include all claims and relevant factual allegations in his Amended Complaint. Id. at 4-5. The Court also provided Plaintiff a list of nine directives to aid him in drafting a proper Amended Complaint. Id. at 5-6. Plaintiff filed a timely Amended Complaint that complied with the Court's Order.[5] Doc. 9.

         II. Claims Against Defendants in Their Official Capacities

         Plaintiff brings his § 1983 claims against Defendants in their official and individual capacities. Doc. 9 at 2, 12. But Plaintiff cannot sustain a § 1983 claim for money damages against Defendants in their official capacities. States are immune from private suits under the Eleventh Amendment and traditional principles of state sovereignty. Alden v. Maine, 527 U.S. 706, 712-13 (1999). Section 1983 does not abrogate the well-established immunities of a state from suit without its consent. Will v. Mich. Dep't of State Police, 491 U.S. 58, 67 (1989). Because a lawsuit against a state agency or a state officer in his official capacity is “no different from a suit against the [s]tate itself, ” such defendants are immune from suit under § 1983. Id. at 71.

         Here, the State of Georgia would be the real party in interest in a suit against Defendants in their official capacities as employees of the Department of Corrections. Accordingly, the Eleventh Amendment immunizes Defendants from suits for money damages in their official capacities. See Free v. Granger, 887 F.2d 1552, 1557 (11th Cir. 1989). Absent a waiver of that immunity, Plaintiff cannot sustain any constitutional claims against Defendants in their official capacities for monetary relief. However, to the extent Plaintiff successfully states a ...


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