United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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. Id. However,
Defendants refused to provide Plaintiff with a
decontamination shower though residual spray remained on
Plaintiff's “body and eyes.” Id.
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.” 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.
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.
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
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). 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
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).
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 Amended Complaint, Doc. 9
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. Doc. 9.
Claims Against Defendants in Their Official
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.
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 ...