Opinion
Case No. 5:18-cv-00336-TES-CHW
10-23-2018
REGINALD FALANDOS SMITH, Plaintiff, v. WARDEN TREVONZA BOBBITT, et al., Defendants.
ORDER AND RECOMMENDATION
This case is currently before the United States Magistrate Judge for preliminary screening as required by the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A(a). Plaintiff Reginald Falandos Smith, an inmate currently confined at Baldwin State Prison, filed the above-captioned proceeding seeking relief under 42 U.S.C. § 1983. Compl., ECF No. 1. Plaintiff seeks to proceed in this action without prepayment of the court's filing fees and has filed a motion for preliminary injunction. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is GRANTED.
As discussed below, Plaintiff may proceed with his Eighth Amendment failure to protect claims against Defendants Farley, Kendricks, and Ingram. It is, however, RECOMMENDED that Plaintiff's claims against Defendant Bobbitt be DISMISSED without prejudice for failure to state a claim. It is further RECOMMENDED that Plaintiff's motion for preliminary injunction (ECF No. 5) be DENIED.
I. Motion to Proceed In Forma Pauperis
28 U.S.C. § 1915 allows the district courts to authorize the commencement of a civil action without prepayment of the normally-required fees upon a showing that the plaintiff is indigent and financially unable to pay the filing fee. A prisoner seeking to proceed in forma pauperis under this section must provide the district court with both (1) an affidavit in support of his claim of indigence and (2) a certified copy of his prison "trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint." § 1915(a)(1)-(2).
In this case, Plaintiff's pauper's affidavit and trust account statement show that he is currently unable to prepay the Court's $350.00 filing fee. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is therefore GRANTED and it does not appear that Plaintiff can afford an initial partial filing fee. Plaintiff is still obligated to pay the full balance of the filing fee, in installments, as set forth in § 1915(b) and explained below. It is accordingly requested that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee. The district court's filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if the Plaintiff's Complaint (or any part thereof) is dismissed prior to service.
A. Directions to Plaintiff's Custodian
It is hereby ORDERED that the warden of the institution wherein Plaintiff is incarcerated, or the sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the Clerk of this Court twenty percent (20%) of the preceding month's income credited to Plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act ("PLRA"), Plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is further ORDERED that collection of monthly payments from Plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against her prior to the collection of the full filing fee.
B. Plaintiff's Obligations Upon Release
An individual's release from prison does not excuse his prior noncompliance with the provisions of the PLRA. In the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay those installments justified by the income to his prisoner trust account while he was still incarcerated. Collection from Plaintiff of any balance due on these payments by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit such payments. Plaintiff's Complaint is subject to dismissal if he has the ability to make such payments.
II. Preliminary Review of Plaintiff's Complaint
A. Standard of Review
Because Plaintiff is a prisoner proceeding under section 1983 and seeks to proceed in forma pauperis in this action, his complaint is subject to screening under 28 U.S.C. §§ 1915(e) and 1915A which require a district court to dismiss any complaint that is frivolous, malicious, or fails to state a claim upon which relief may be granted. When conducting a preliminary review, the district court must accept all factual allegations in the complaint as true and make all reasonable inferences in the plaintiff's favor. See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004) (stating that allegations in the complaint must be viewed as true). Pro se pleadings are also "held to a less stringent standard than pleadings drafted by attorneys," and a pro se complaint is thus "liberally construed." Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam). The district court, however, cannot allow a plaintiff to litigate frivolous, conclusory, or speculative claims. As part of the preliminary screening, the court shall dismiss a complaint, or any part thereof, prior to service, if it is apparent that the plaintiff's claims are frivolous or if his allegations fail to state a claim upon which relief may be granted - i.e., that the plaintiff is not entitled to relief based on the facts alleged. See 28 U.S.C. § 1915(e); 28 U.S.C. § 1915A.
The Eleventh Circuit determined that "28 U.S.C. § 1915(e), which governs proceedings in forma pauperis generally . . . permits district courts to dismiss a case 'at any time' if the complaint 'fails to state a claim on which relief may be granted.'" Robinson v. United States, 484 F. App'x 421, 422 n.2 (11th Cir. 2012) (per curiam); see also Troville v. Venz, 303 F.3d 1256 (11th Cir. 2002). --------
To state a viable claim, the complaint must include "enough factual matter" to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). There must also be "enough facts to raise a reasonable expectation that discovery will reveal evidence" to prove the claim. Id. at 556. The claims cannot be speculative or based solely on beliefs or suspicions; each must be supported by allegations of relevant and discoverable fact. Id. Thus, neither legal conclusions nor a recitation of legally relevant terms, standing alone, is sufficient to survive preliminary review. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'") (quoting Twombly, 550 U.S. at 555). Claims without an arguable basis in law or fact will be dismissed as frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); accord Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (noting that claims are frivolous if "clearly baseless" or based upon "indisputably meritless" legal theories).
B. Factual Allegations
The events underlying this lawsuit occurred at Baldwin State Prison. Plaintiff complains that on August 27, 2018, he informed Officer Wallace that Plaintiff needed to report an incident under the Prison Rape Elimination Act ("PREA") after Plaintiff's cellmate made unwanted advances toward Plaintiff. Compl. 5, ECF No 1. Officer Wallace left for five minutes and then informed Plaintiff that Plaintiff could not make the report until the next day per Lieutenant Proser's instructions. Id. A few hours later, Plaintiff's cellmate choked Plaintiff unconscious. Id. When Plaintiff woke up his shirt was ripped and "there was semen on [his] face, neck, and chest area." Id. Plaintiff washed himself and then "beat on the door" until Officer Brock approached. Id. Plaintiff informed Officer Brock that Plaintiff required medical attention and wished to report a sexual assault. Id. Officer Brock went to speak to Lieutenant Ingram and then told Plaintiff "somebody would come by." Id. Two hours elapsed while Plaintiff remained confined in his cell with his attacker, and when he again requested attention, he was told that "Lt. Ingram" would not permit Plaintiff to call PREA. Id. At 11:00 p.m., approximately six hours after Plaintiff initially requested to make a PREA report, Defendant Ingram walked past Plaintiff's cell and informed Plaintiff that "Cooper will talk to you." Id. Plaintiff was not permitted to leave his cell until nearly 3:00 a.m., when he reported the incident to Officers Ward and Cooper. Id.
On September 22, 2018, Plaintiff filed a motion for emergency preliminary injunction which contains additional factual allegations. Mot. for Prelim. Inj., ECF No. 5. In light of Plaintiff's pro se status, the Court construes those aspects of the motion which include additional factual allegations as a motion to amend his Complaint. See generally Newsome v. Chatham Cty. Detention Ctr., 256 Fed. Appx. 342, 344 (11th Cir. 2007). Plaintiff's construed motion for leave to amend is GRANTED, such that the facts therein are now considered as part of his Complaint.
According to the amendment, Plaintiff was previously assaulted at Georgia State Prison, and shortly after his transfer to Baldwin State Prison he began receiving threats from gang members. Mot. for Prelim Inj. 1, ECF No. 5. Plaintiff informed Defendant Farley of the threats and his institutional history of victimization, and Plaintiff requested transfer to protective custody. Defendant Farley ignored Plaintiff's request. Id.
Since the incident in Plaintiff's cell, Plaintiff has continued to receive threats from other inmates. Plaintiff informed Unit Manager Kendricks of the threats and informed Kendricks that Plaintiff would feel safer at another prison. Id. at 2. Defendant Kendricks said he would have Plaintiff transferred, but Plaintiff remains at Baldwin State Prison as of the date he filed his Complaint. Id. Defendant Kendricks now "hold[s] it over [Plaintiff's] head whenever" there is a dispute and taunts Plaintiff about his life being in danger. Id. Plaintiff's request for protective custody continues to be denied, and he has been told "they don't have bed space for that." Id.
"[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment's proscription against cruel and unusual punishment not only protects prisoners from violence at the hands of jailors, but it also imposes upon jailors a duty "to protect prisoners from violence at the hands of other prisoners." Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313, 1320 (11th Cir. 2005) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Under the Eighth Amendment, a prisoner has the right "to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates." Id. (quoting Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973)). A defendant is liable under the Eighth Amendment "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847.
Under a liberal construction of Plaintiff's Complaint, Plaintiff's allegations are sufficient to state a plausible claim for relief at this stage of the proceedings. Plaintiff may proceed with his Eighth Amendment claims against Defendants Kendricks, Farley, and Ingram. Plaintiff alleges that he informed Defendants Farley and Kendricks that he had a history of victimization while in prison and that other inmates at Baldwin State Prison began to taunt and threaten him. Kendricks and Farley denied Plaintiff's requests for transfer or protective custody. Then, on August 27, Plaintiff's cellmate made sexual advances toward Plaintiff. Defendant Ingram was made aware of the situation and left Plaintiff in his cell, allowing Plaintiff to be attacked by his cellmate. After the incident, Defendant Ingram left Plaintiff in his cell with the attacker for several additional hours.
Although Plaintiff may proceed with his claims against Defendants Farley, Kendricks, and Ingram, Plaintiff has not alleged sufficient facts to proceed with his claim against Defendant Warden Trevonza Bobbitt. Plaintiff is proceeding pro se and is not required to adhere to technical niceties when drafting his Complaint, but he is required to "state with some minimal particularity how overt acts of the defendant caused a legal wrong." Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (quoting Pamel Corp. v. P.R. Highway Auth., 621 F.2d 33, 36 (1st Cir. 1990)). "[S]ection 1983 'requires proof of an affirmative causal connection between the actions taken by a particular person "under color of state law" and the constitutional deprivation."' LaMarca v. Turner, 995 F.2d 1526, 1538 (11th Cir. 1993) (quoting Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir. 1982) and citing Redman v. Cty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991)). Plaintiff has failed to satisfy this minimal standard, as neither his Complaint nor construed Amended Complaint contain factual allegations against Defendant Bobbitt. To the extent that Plaintiff named Defendant Bobbitt as a Defendant in virtue of Defendant Bobbitt's position as Warden of Baldwin State Prison, "supervisory officials are not[ ]liable under § 1983 for the unconstitutional acts of their subordinates 'on the basis of respondeat superior or vicarious liability.'" Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (quoting Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)). Accordingly, it is RECOMMENDED that Defendant Bobbitt be DISMISSED WITHOUT PREJUDICE.
III. Motion for Preliminary Injunction
Although Plaintiff does not specify the exact relief he seeks in his motion for preliminary injunction, see Mot. for Prelim. Inj. 1-2, ECF No. 5, the Court presumes that he requests an order directing the Defendants to place Plaintiff in protective custody or to transfer him to another unit or facility. Preliminary injunctive relief is only appropriate where the movant demonstrates that: "(a) there is a substantial likelihood of success on the merits; (b) the TRO or preliminary injunction is necessary to prevent irreparable injury; (c) the threatened injury outweighs the harm that the TRO or preliminary injunction would cause to the non-movant; and (d) the TRO or preliminary injunction would not be adverse to the public interest." Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) (citing Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985)). "A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the 'burden of persuasion' as to each of the four prerequisites." Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003) (alterations adopted) (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)).
Although Plaintiff has alleged sufficient facts to proceed past the screening stage when inferences are drawn in his favor, Plaintiff has yet to identify sufficient objective evidence to carry his burden for a preliminary injunction on any of the four prerequisites. It remains unclear exactly what details or information Plaintiff has conveyed to each Defendant, what each Defendant is aware of, and the exact nature of the threat against Plaintiff. Consequently, Plaintiff has failed to demonstrate a substantial likelihood of success on the merits. Plaintiff's Complaint also primarily details harms he suffered from a sexually assault by a cellmate, but Plaintiff's motion for preliminary injunction concerns alleged threats from gang members. The connection between the two is unclear. It is also unclear to what extent Plaintiff may or may not be exposed to the gang members who have threatened him. As such, the Court is unable to conclude that Plaintiff has met his burden of showing a threat of irreparable injury. Plaintiff has also failed to address, even in conclusory terms, the remaining two prerequisites to a preliminary injunction. Further, no Defendants have been served or had the opportunity to respond to Plaintiff's Complaint or his motion. Fed. R. Civ. P. 65(a)(1) ("The Court may issue a preliminary injunction only on notice to the adverse party."). Consequently, it RECOMMENDED that Plaintiff's motion for preliminary injunction (ECF No. 5) be DENIED.
IV. Conclusion
Based on the forgoing, Plaintiff may proceed with his Eighth Amendment failure to protect claims against Defendants Farley, Kendricks, and Ingram. It is, however, RECOMMENDED that Plaintiff's claims against Defendant Bobbitt be DISMISSED without prejudice for failure to state a claim. It is further RECOMMENDED that Plaintiff's motion for preliminary injunction (ECF No. 5) be DENIED.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the assigned United States District Court Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal any order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
ORDER FOR SERVICE
It is ORDERED that service be made on Defendants Farley, Kendricks, and Ingram and that they file an Answer, or such other response as may be appropriate under Rule 12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendants are reminded of the duty to avoid unnecessary service expenses, and of the possible imposition of expenses for failure to waive service pursuant to Rule 4(d).
DUTY TO ADVISE OF ADDRESS CHANGE
During this action, all parties shall keep the Clerk of this Court and all opposing attorneys and/or parties advised of their current address. Failure to promptly advise the Clerk of any change of address may result in the dismissal of a party's pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff must diligently prosecute his Complaint or face the possibility that it will be dismissed under Rule 41(b) of the Federal Rules for failure to prosecute. Defendants are advised that they are expected to diligently defend all allegations made against them and to file timely dispositive motions as hereinafter directed. This matter will be set down for trial when the Court determines that discovery has been completed and that all motions have been disposed of or the time for filing dispositive motions has passed.
FILING & SERVICE OF MOTIONS AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of Court. A party need not serve the opposing party by mail if the opposing party is represented by counsel. In such cases, any motions, pleadings, or correspondence shall be served electronically at the time of filing with the Court. If any party is not represented by counsel, however, it is the responsibility of each opposing party to serve copies of all motions, pleadings, and correspondence upon the unrepresented party and to attach to said original motions, pleadings, and correspondence filed with the Clerk of Court a certificate of service indicating who has been served and where (i.e., at what address), when service was made, and how service was accomplished (i.e., by U.S. Mail, by personal service, etc.).
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of the Defendant from whom discovery is sought by the Plaintiff. The Defendants shall not commence discovery until such time as an answer or dispositive motion has been filed. Once an answer or dispositive motion has been filed, the parties are authorized to seek discovery from one another as provided in the Federal Rules of Civil Procedure. The deposition of the Plaintiff, a state/county prisoner, may be taken at any time during the time period hereinafter set out provided prior arrangements are made with his custodian. Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil Procedure.
IT IS HEREBY ORDERED that discovery (including depositions and the service of written discovery requests) shall be completed within 90 days of the date of filing of an answer or dispositive motion by the Defendants (whichever comes first) unless an extension is otherwise granted by the court upon a showing of good cause therefor or a protective order is sought by the Defendants and granted by the court. This 90-day period shall run separately as to Plaintiff and Defendants beginning on the date of filing of Defendants' answer or dispositive motion (whichever comes first). The scheduling of a trial may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline.
Discovery materials shall not be filed with the Clerk of Court. No party shall be required to respond to any discovery not directed to him or served upon him by the opposing counsel/party. The undersigned incorporates herein those parts of the Local Rules imposing the following limitations on discovery: except with written permission of the Court first obtained, INTERROGATORIES may not exceed TWENTY-FIVE (25) to each party, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS under Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to each party, and REQUESTS FOR ADMISSIONS under Rule 36 of the Federal Rules of Civil Procedure may not exceed FIFTEEN (15) requests to each party. No party is required to respond to any request which exceed these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
The Court shall not consider requests for dismissal of or judgment in this action, absent the filing of a motion therefor accompanied by a brief/memorandum of law citing supporting authorities. Dispositive motions should be filed at the earliest time possible, but in any event no later than one hundred - twenty (120) days from when the discovery period begins unless otherwise directed by the Court.
COMPLIANCE WITH COURT ORDERS AND REQUESTS
Failure to fully and timely comply with any order or request of the Court, or other failure to diligently prosecute this case, will result in the dismissal of the failing party's pleadings. See Fed. R. Civ. P. 41.
SO ORDERED AND RECOMMENDED, this 23rd day of October, 2018.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge