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Kennedy v. Johns

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

January 15, 2020

DENNIS KENNEDY, Plaintiff,
v.
WARDEN JOHNS, et al., Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff brought this action under 42 U.S.C. § 1983 while incarcerated at D. Ray James Correctional Facility in Folkston, Georgia, to challenge certain conditions of his confinement. Doc. 1. Plaintiff also submitted a motion to proceed in forma pauperis, which this Court granted. Docs. 2, 4. After the requisite frivolity review, the Court FINDS Plaintiff sets forth cognizable claims for excessive force, deliberate indifference, and denial of procedural due process against Defendants Brazeale and Lawson. Additionally, for the reasons set forth below, I RECOMMEND the Court DISMISS Plaintiff's conditions of confinement, supervisory liability, and deliberate indifference claims against Defendants Lawson, Johns, and Cross, and DENY Plaintiff in forma pauperis status on appeal as to those claims. Accordingly, the Court DIRECTS the United States Marshal to serve Defendants Brazeale and Lawson with a copy of Plaintiff's Complaint, doc. 1, and this Order without prepayment of cost.

         BACKGROUND[1]

         On May 29, 2017, Correctional Officer Brazeale forcefully closed a door on Plaintiff's back, causing him injury and significant pain. Doc. 1 at 10. Plaintiff was walking outside for a recreational period but had stopped in the doorway to call to a friend when Brazeale became verbally abusive toward him by “cursing and acting in an unprofessional manner.” Id. at 11. Then, Brazeale “reached for the door, using the door as a weapon to hit [Plaintiff] in the back with force.” Id. Plaintiff experienced agonizing pain and asked for help, but Brazeale “continued to be abusive, ” and other inmates would not help Plaintiff due to Brazeale's “belligerent and unprofessional behavior.” Id.

         In the medical ward, immediately after he was struck, Plaintiff complained of excruciating back pain and was prescribed pain medication and muscle relaxers. Id. at 7. Plaintiff also received crutches for walking. Id. The next day, Plaintiff fell off his crutches, and Captain Lawson, passing by, remarked to other inmates that Plaintiff was faking his injuries. Id. Due to his fall, the medical unit gave Plaintiff a wheelchair, and he continued to take “multiple pain medications multiple times daily.” Id. at 7. Days later, a physician's assistant performed an x-ray and told Plaintiff “something was seriously wrong with [his] spine.” Id. Plaintiff wrote to Robyn Cross, the Health Services Administrator, requesting additional treatment but was instructed to “remain patient” and wait for an appointment. Id. at 7-8. Specifically, Plaintiff desired a CAT scan to assess his spinal injuries but, as of the time of filing his Complaint, Plaintiff had not received one. Id. at 8.

         The morning of June 6, 2017, Plaintiff received a medical check-up in connection to the wheelchair he had been prescribed. Id. at 9. Defendant Lawson appeared in the medical ward and told Plaintiff he was faking, then directed two correctional officers to remove Plaintiff from the wheelchair and place him in a regular chair. Id. Then, Lawson told Plaintiff to find his way back to his unit on crutches. Id. While attempting to return to his unit on crutches, in the rain, Plaintiff slipped and fell a second time. Id. Medical staff found Plaintiff and returned him to the medical ward on a stretcher where he was given the wheelchair again. Id. Lawson returned to the medical ward and appeared “furious, ” then handcuffed Plaintiff and brought him to the Special Housing Unit (“SHU”) where he remained for six days. Id. Later, on July 14, 2017, Lawson blocked Plaintiff from entering the dining hall where the other inmates were eating because Plaintiff arrived late due to an internal affairs interview connected to his spine injury. Id. A different officer brought Plaintiff food to eat. Id. at 9-10.

         Plaintiff complains that Warden Johns has not “reprimanded or disciplined” Brazeale or “attempted to rectify the issue in any way, ” contending that, by refusing to take action against Brazeale, the warden condones Brazeale's actions. Id. at 7. Plaintiff continues to have pain due to his back injury and suffers sleepless nights due to his back pain. Id. at 7-8. He seeks relief in the form of $5 million in compensatory damages and $30 million in punitive damages. Id. at 20. Plaintiff submitted the record of his formal and informal grievances connected to the foregoing events. Doc. 1-1. The Court granted Plaintiff leave to proceed in forma pauperis and now conducts the requisite frivolity review.

         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. Supervisory Liability

         Plaintiff contends Defendant Johns, Warden of D. Ray James Correctional Facility, is liable for failing to discipline Defendant Brazeale after Brazeale allegedly injured him. Doc. 1 at 13-14. Section 1983 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. Id. at 802. “To 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).

         Plaintiff wishes to hold Defendant Johns liable based solely on Johns' supervisory position as the Warden of the D. Ray James Correctional Facility. Plaintiff asserts no factual allegations that Johns directly participated in or was otherwise causally connected to the alleged deprivations of his constitutional rights. Rather, Plaintiff alleges that Defendant Johns “has implicitly condoned and authorized the unnecessary use of violence and force against inmates.” Doc. 1 at 7. Plaintiff states Defendant Johns has a duty to “protect and provide a safe environment for inmates.” Id. As set forth above, such supervisory allegations are an insufficient basis for § 1983 liability. Moreover, as explained below, in order to establish that a defendant violated his Eighth Amendment rights, Plaintiff must show that the Defendant was objectively aware of a risk to Plaintiff's safety and that the defendant consciously disregarded that risk. Plaintiff does not plausibly allege these elements as to Defendant Johns. Rather, he relies upon an inference that Defendant Johns-by not disciplining Defendant Brazeale- supports the use of excessive force against inmates. Even under the standard of review at this early stage, these allegations do not survive. For these reasons, the Court should DISMISS all claims against Defendant Johns.

         II. ...


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