Opinion
5:19-CV-126-MTT-CHW
01-05-2021
WASEEM DAKER, Plaintiff, v. TIMOTHY WARD, et al., Defendants.
ORDER AND RECOMMENDATION
Charles H. Weigle United States Magistrate Judge
Presently pending before the Court is an Amended Complaint filed by Plaintiff Waseem Daker, a prisoner currently incarcerated at the Smith State Prison in Glennville, Georgia, seeking relief pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq. (ECF No. 1). Plaintiff has paid the required filing fee in this case, and his claims are ripe for screening pursuant to 28 U.S.C. § 1915A. Having conducted such screening, it is found that certain claims related to individual forced shaving incidents shall proceed for further factual development. It is RECOMMENDED, however, that Plaintiff's remaining claims be DISMISSED without prejudice. Plaintiff's motion to expedite (ECF No. 39) is DENIED as moot.
PRELIMINARY SCREENING
I. Standard of Review
In accordance with the Prison Litigation Reform Act (“PLRA”), the district courts are obligated to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are “held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Id. (internal quotation marks omitted). Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A(b).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include “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)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
II. Factual Allegations
Plaintiff's claims arise from his incarceration within the Georgia Department of Corrections (“GDC”) system. Plaintiff's Amended Complaint in this case lists approximately six dozen Defendants. Approximately twenty of these Defendants are GDC officials in Forsyth, Georgia. The remaining Defendants are prison officials at the Macon State Prison (“MSP”), Baldwin State Prison (“BSP”), or Valdosta State Prison (“VSP”), all of which are GDC facilities in which Plaintiff has been housed since April 19, 2018. Id. at 15.
These Defendants include Defendants Ward, Dozier, Koon, Upton, Toole, Holt, Stanton, Ammons, Lewis, “Dr. John Doe, Dental Director, ” “John Doe, Food Service Director, ” Turner, Myrick, Fountain, Cindy L. Smith, Burse, Crickmar, Danforth, the Georgia Department of Corrections itself, and the State of Georgia. Am. Compl. 1, ECF No. 12. For ease of reference, these Defendants will be referred to as “the GDC Defendants.”
The MSP officials will be referred to as “the MSP Defendants” and include McLaughlin, Eaddie, Sales, McKenzie, Lake, Kegler, Rivers, Walker, Jackson, Wright, Streeter, Jeffries, Patterson, Staten, Childs, Black, Lockett, Pope, Mosley, Lachasity Davis, and Hall. The BSP officials will be referred to as “the BSP Defendants” and are Bobbit and “John Doe, Deputy Warden of Security.” The VSP officials will be referred to as “the VSP Defendants” and are Emmons, Stanley Williams, Blakely, Wittington, Derren Jackson, Shropshire, Mims, Woods, Piniero, Gibson, Forbes, Smith, Allen, Davis, Brockington, Richardson, Miles, Zirkle, Kern, McCullen, Watkins, “Jane Doe, IRT Guard, ” eight additional John or Jane Doe guards, Hal, Aubrey Williams, CERT Guard Ford, Foster, and Miller. Am. Compl. 1-2, ECF No. 12.
Plaintiff has been in GDC custody since October 3, 2012. Am. Compl. 8, ECF No. 12. Plaintiff is “Muslim, an adherent to the religion of Islam, ” and one of the tenets of his religion is that he wear a beard that is “at least as long as the width of one's fist.” Id. at 10. For Plaintiff, a fist-length beard would be approximately three inches long. Id. The GDC, however, maintains a grooming policy which limits inmates to wearing only a half-inch beard. Id.
Plaintiff generally alleges that the GDC's grooming policy itself-as well as Defendants' efforts to enforce it via the use of force and disciplinary actions-violates his constitutional and statutory rights. Plaintiff also challenges various conditions of his confinement in the GDC's Tier II segregation program, where Plaintiff contends he was placed after he refused to shave. More specifically, Plaintiff raises the following claims in his Amended Complaint: (1) Defendants' grooming policy violates the RLUIPA and the First Amendment; (2) Defendants' policy of using force to enforce the grooming policy violates RLUIPA, the First Amendment, and the Eighth Amendment; (3) Defendants' custom of failing to properly sanitize hair clippers violates the Eighth Amendment; (4) certain Defendants' forcible shaving of Plaintiff on June 13, 2018; September 18, 2018; February 18, 2019; and July 12, 2019 violates RLUIPA, the First Amendment, and the Eighth Amendment; (5) certain Defendants' failure to intervene in the February 18, 2019 and July 12, 2019 forcible shaving incidents violates the Eighth Amendment; (6) the 2018 placement of Plaintiff on Tier II violates RLUIPA, the First Amendment, and substantive and procedural due process; (7) the 90-day reviews conducted by prison officials during Plaintiff's Tier II segregation violate RLUIPA, the First Amendment, and substantive and procedural due process; (8) the “issuance, handling, and punishment” of disciplinary reports received by Plaintiff violate RLUIPA, the First Amendment, and substantive and procedural due process; (9) Plaintiff's placement on Tier II “violates RLUIPA because it causes him to be denied religious exercise, ” including the ability to participate in Islamic services and rituals, possess Islamic prayer oil, books, and CDs, and access JPay tablets which would allow him to communicate with “imams, Islamic scholars, and Islamic religious advisers”; (10) the policy denying Tier II prisoners access to various food and property packages, religious paraphernalia, CDs, books, magazines, newspapers, JPay tablets, email access, and other media violates the First Amendment and RLUIPA; (11) denial of law library access at the prisons violates Plaintiff's right of access to the courts; (12) the denial of a digital Qur'an, Islamic and educational DVDs and software, miswak, Halal hygiene items, and Halal food violates the First Amendment and RLUIPA; and (13) the denial of access to photocopying, stored legal materials, legal materials on S.D. cards, flash drives, and CDs violates Plaintiff's First Amendment right of access to the courts. Id. at 63-69. As a result of these alleged violations, Plaintiff seeks declaratory judgments; prospective, equitable, and injunctive relief; nominal, compensatory, and punitive damages; the costs of prosecuting this action; and “other such relief that the court deems necessary or appropriate.” Id. at 68.
III. Plaintiff's Claims
A. Grooming Policy Claims against the GDC Defendants
1. Plaintiff's Claims that the GDC's Grooming Policy Violates the First Amendment and RLUIPA are Duplicative and Malicious
Plaintiff first broadly claims that the GDC's grooming policy, which limits inmates to having only a half-inch beard, violates RLUIPA and the First Amendment. Am. Compl. 63, ECF No. 12. In other words, Plaintiff contends that the GDC's grooming policy substantially burdens his religious exercise by forcing him “either to engage in conduct that violates his sincerely held religious beliefs, or to face discplinary action.” Smith v. Owens, 848 F.3d 975, 981 (11th Cir. 2017). Plaintiff alleges that the GDC Commissioner and the other GDC Defendants “exercise final decisionmaking authority over prison transfers and related policies and practices” under Georgia law and are therefore “responsible for all GDC policies and customs.” Id. at 8-9. Plaintiff, however, has raised these same claims against the GDC Defendants on multiple occasions. These claims should therefore be dismissed.
28 U.S.C. § 1915A provides that a court “shall” dismiss claims that are frivolous or malicious. District courts are “‘vested with especially broad discretion' in determining” whether a dismissal for frivolousness or maliciousness is warranted. Bailey v. Johnson, 846 F.2d 1019, 1020-21 (5th Cir. 1988) (per curiam). Courts have summarily dismissed actions as frivolous or malicious where the complaints “merely repeat[] pending or previously litigated claims, ” even if the parties and claims in the two pending suits are not precisely the same. See Id. at 1021 (“[R]epetitious litigation of virtually identical causes of action is subject to dismissal under 28 U.S.C. § 1915(d) as malicious.”); Van Meter v. Morgan, 518 F.2d 366, 367 (8th Cir. 1975) (per curiam) (affirming dismissal of complaint as frivolous where plaintiff had already filed a “pro se complaint which deals with issues directly related, if not identical to” issues in dismissed complaint); Bazemore v. Casey, 433 Fed.Appx. 326, 327 (5th Cir. 2011) (per curiam) (finding district court did not abuse its discretion in dismissing case as malicious where “both the instant case and [the] prior case involve ‘the same series of events' and contain allegations of ‘many of the same facts'”); Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (“[I]t is ‘malicious' for a pauper to file a lawsuit that duplicates allegations of another pending federal lawsuit by the same plaintiff.”); Daley v. U.S. Attorneys Office, 538 Fed.Appx. 142, 143 (3d Cir. 2013) (per curiam) (unpublished opinion) (affirming dismissal of complaint that “duplicated many of [the plaintiff's] previous allegations” in other cases); McWilliams v. Colorado, 121 F.3d 573, 574 (10th Cir. 1997) (“[R]epetitious litigation of virtually identical causes of action may be dismissed under § 1915 as frivolous or malicious.” (internal quotation marks omitted) (first alteration in original)).
Some of the authorities cited herein were decided under 28 U.S.C. § 1915(e)(2)(B)(i), which also provides that a court “shall dismiss” frivolous and malicious cases, or its predecessor statute, 28 U.S.C. § 1915(d), which provided that a court “may” dismiss a case “if satisfied that the action is frivolous or malicious.” All these authorities are therefore instructive on the issue of determining whether a particular action should be dismissed sua sponte as frivolous or malicious.
At the time Plaintiff filed the Amended Complaint in this case, on or about September 27, 2019, it is clear that he had already filed or was actively litigating multiple lawsuits against the GDC Defendants challenging the legality of their official grooming policy. See, e.g., Am. Compl. 63, ECF No. 12; Daker I, Am. Compl. 135, ECF No. 255; Daker II, Compl. 22, ECF No. 1; Daker III, Compl. 25, ECF No. 1-1; Daker IV, Compl. 13, ECF No. 1-1; and Daker V, Compl. 55, ECF No. 1-1. In at least one of these cases, this claim was dismissed with prejudice. See generally Order Dismissing Am. Compl., May 8, 2017, ECF No. 388 in Daker I. At the time Plaintiff filed his Amended Complaint in this case, appeals were still pending in Daker I, Daker III, Daker IV, and Daker VI, and Plaintiff's motion to vacate was still pending before the district court in Daker V. Plaintiff's claim against the GDC Defendants that the grooming policy violates his constitutional or statutory rights is therefore malicious and an abuse of process. See Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013) (“When a pro se litigant files complaints that are repetitive, duplicative of other filings, without merit, or frivolous, he abuses the district court process.”); see also Daley, 538 Fed.Appx. at 143 (“Daley's complaint is also malicious as it repeats claims that he unsuccessfully previously litigated twice before in the District Court.”); Caballero v. Robinson, 95 F.3d 49 (5th Cir. 1996) (unpublished opinion) (holding that a “plainly duplicative” lawsuit was “subject to dismissal as malicious and abusive” even though plaintiff named additional defendants in later-filed case).
Plaintiff's § 1983 cases include, but are not limited to: (1) Daker v. Owens, No. 5:12-cv-00459-CAR-MSH (M.D. Ga. Nov. 20, 2012) (“Daker I”); (2) Daker v. Bryson, No. 5:16-cv-00538-CAR-MSH (M.D. Ga. Dec. 7, 2016) (“Daker II”); Daker v. Ward, No. 5:17-cv-00025-CAR-MSH (M.D. Ga. Jan. 19, 2017) (“Daker III”); Daker v. Dozier, No. 6:17-cv-00110-JRH-RSB (S.D. Ga. Aug. 11, 2017) (“Daker IV”); Daker v. Dozier, No. 6:18-cv-00032-JRH-BWC (S.D. Ga. Mar. 26, 2018) (“Daker V”); and Daker v. Dozier, No. 5:18-cv-00245-CHW-TES (M.D. Ga. July 9, 2018) (“Daker VI”). Plaintiff also has pending before this Court habeas corpus claims challenging his confinement to and retention on Tier II. Daker v. Emmons, No. 7:20-cv-00043-MTT-CHW (M.D. Ga. Mar. 10, 2020) (“Daker VII”).
Although Plaintiff suggests in his Amended Complaint that the only case in which he “challenges the GDC grooming policy generally” is Daker I, Am. Compl. 11 n.4, ECF No. 12, that suggestion is contradicted by the clear language in his statement of claims, id. at 63 (“Plaintiff claims that all Defendants (including but not limited to, Georgia, GDC, Dozier, Ward, Koon, Upton, Toole, Holt, Stanton, Ammons, Lewis, Turner, Myrick, Fountain, C.L. Smith, Burse, Crickmar, and Danforth) grooming policy violates: (1) the RLUIPA; and (2) the First Amendment.”).
See Eleventh Circuit Appeal Numbers 17-1069; 17-12184; 19-11449; and 19-11213.
2. Plaintiff's Claims that the GDC Has Customs or Policies Related to the Enforcement of the GDC Grooming Policy Are Duplicative and Malicious
Plaintiff has also alleged that the GDC Defendants maintain a custom or policy of using force to enforce its official grooming policy, and that this custom or policy violates the First Amendment, the Eighth Amendment, and RLUIPA. Am. Compl. 63, ECF No. 12. In addition, Plaintiff contends that the GDC Defendants maintain a custom or policy of failing to properly sanitize the clippers used to forcibly shave inmates in violation of the Eighth Amendment. Id. As with Plaintiff's claims concerning the GDC's official grooming policy, Plaintiff has also raised these precise claims against the GDC Defendants in prior or pending litigation. See, e.g., Am. Compl. 63, ECF No. 12; Daker I, Am. Compl. 135-36; Daker II, Compl. 21-22, ECF No. 1; Daker III, Compl. 25, ECF No. 1; Daker IV, Compl. 13, ECF No. 1-1. As such, these claims are also duplicative and therefore frivolous or malicious within the meaning of 28 U.S.C. § 1915A and should be dismissed.
3. Plaintiff's Claims Challenging the GDC Defendants' Grooming Policy and Related Customs or Policies are Harassing and Vexatious
A claim can also be “malicious if it was filed with the intention or desire to harm another, ” Andrews, 398 F.3d at 1121, or if it is harassing and vexatious, Washington, 59 F.3d 172. As noted above, the Court dismissed Plaintiff's grooming policy claims against the GDC Defendants with prejudice in at least one case. See, generally Order Dismissing Am. Compl., May 8, 2017, ECF No. 388 in Daker I. The Court also dismissed Plaintiff's grooming policy claims against the GDC Defendants in at least two other cases on grounds that the claims were duplicative. See Order 9-10, ECF No. 17 in Daker III (M.D. Ga. July 18, 2017) (dismissing duplicative claims as “malicious and abusive”); Order 9, ECF No. 17 in Daker II (M.D. Ga. June 8, 2017) (dismissing duplicative claims as malicious). Plaintiff therefore clearly knew the consequences of raising such claims and intentionally disregarded them.
The fact that Plaintiff continues to file his repetitive claims in this District after being warned that such claims were improper demonstrates that his claims in this case against the GDC Defendants have no legitimate purpose. See, e.g., Stone v. Baum, 409 F.Supp.2d 1164, 1171 (D. Ariz. 2005) (concluding that plaintiffs filed case for an improper purpose where action “involve[d] the same parties and the same transactional nucleus of facts as the prior suits and it seeks to relitigate issues that have been conclusively resolved in the prior suits”). Plaintiff's claims against the GDC Defendants concerning the GDC's official grooming policy and their related unofficial policies and customs are also subject to dismissal for this reason.
B. Plaintiff's Remaining Claims
Plaintiff's remaining claims can be divided into four general categories: (1) due process claims concerning Plaintiff's placement and retention on Tier II; (2) claims that Plaintiff has been deprived of court access on Tier II; (3) claims that other restrictions on Plaintiff's conditions of his confinement in Tier II violate his religious freedom rights; and (4) claims that prison officials at MSP and VSP violated Plaintiff's constitutional and statutory rights when they forcibly shaved him on several separate occasions and punished him for refusing him to shave.
1. Plaintiff's Due Process Claims Related to His Placement and Retention on Tier I
A significant portion of Plaintiff's Amended Complaint challenges his placement and retention on Tier II. Specifically, Plaintiff challenges the following placement or retention decisions: (1) April 2018 placement on Tier II at MSP, Am. Compl. 64, ECF No. 12; (2) June 2018 Tier II 90-day review at MSP, id. at 65; (3) September 2018 Tier II 90-day review at MSP, id.; (4) December 2018 Tier II 90-day review at MSP, id.; (5)
December 2018 Tier II 90-day review at VSP, id.; (6) March 2019 Tier II 90-day review at VSP, id.; and (7) June 2019 Tier II 90-day review at VSP, id. In addition, Plaintiff contends that the issuance, handling, and punishment for various disciplinary reports violated his constitutional and statutory rights because they contributed to his placement and/or retention on Tier II. Id. at 65-66.
Plaintiff also contends that his placement on Tier II generally violates RLUIPA because he is deprived access to certain aspects of his religious exercise while confined to Tier II. Am. Compl. 66-67, ECF No. 12. This claim is addressed in section III.B.3., infra.
To the extent Plaintiff is alleging he was not afforded due process with respect to these claims, Plaintiff is already litigating these claims in a consolidated habeas corpus proceeding in this Court: Daker VII. In Daker VII, Plaintiff challenges the same placement or retention decisions he is challenging in this case: (1) April 19, 2018 placement on Tier II at MSP, Am. Pet. 39, ECF No. 5 in Daker VII; (2) June 11, 2018 Tier II 90-day review at MSP, id. at 40; (3) September 18, 2018 Tier II 90-day review at MSP, id. at 40-41; (4) December 7, 2018 Tier II 90-day review at MSP, id. at 41; (5) December 28, 2018 Tier II 90-day review at VSP, id. at 41, Pet. 52, ECF No. 1 in Daker VII; and (6) June 20, 2019 Tier II 90-day review at VSP, id. at 53. In his habeas petitions, Plaintiff likewise cites to various disciplinary reports that allegedly contributed to his placement or retention on Tier II. See, e.g., Id. at 42-43 (discussing disciplinary reports arising from September 2018 forced shaving incident).
“State prisoners have two main avenues of relief on complaints related to their imprisonment under federal law: habeas corpus petitions under § 2254 and complaints under § 1983.” Daker v. Warden, 805 Fed.Appx. 648, 650 (11th Cir. 2020) (per curiam). But “[t]hese avenues are mutually exclusive: if a claim can be raised in a federal habeas petition, that same claim cannot be raised in a separate § 1983 civil rights action.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006). The Eleventh Circuit has confirmed that Plaintiff must bring his due process claims concerning his placement or retention on Tier II in his pending habeas petition. Daker, 805 Fed.Appx. at 650. Plaintiff's § 1983 due process claims challenging the very same placement or retention decisions in this case must therefore be dismissed.
To the extent the Eleventh Circuit indicated Plaintiff's First Amendment claims related to his placement and retention on Tier II should proceed under § 1983, Daker, 805 Fed.Appx. at 651, these claims are discussed in section III.B.4.c, infra.
2. Plaintiff's § 1983 Claims Concerning Denial of Court Access
Plaintiff next asserts that various Defendants have denied him access to the courts by (1) denying him access to photocopies; (2) denying him access to the law libraries at MSP and VSP; (3) denying him access to his stored legal materials; and (4) denying him access to legal materials stored on electronic media, such as S.D. cards and CDs. Am. Compl. 67, 68, ECF No. 12.
To the extent Plaintiff contends that Defendants Ward, Perry, and Emmons denied Plaintiff access to photocopies and the law library, his claims are duplicative. These claims are presently pending in the Recast Complaint filed in Daker v. Ward, No. 5:19-cv-00365-MTT-CHW (M.D. Ga. Feb. 27, 2020) (“Daker VIII”). Plaintiff names the GDC, Ward, Perry, and Emmons as Defendants in that lawsuit and alleges that “Defendants' denying him access to photocopying violates his right of access to the courts” and that “Defendants' denying him law library access violates his right of access to the courts.” Recast Compl. 104, ECF No. 9 in Daker VIII. These claims should therefore be dismissed as duplicative, malicious, and/or frivolous. See, e.g., Pittman, 980 F.2d at 995 (“[I]t is ‘malicious' for a pauper to file a lawsuit that duplicates allegations of another pending federal lawsuit by the same plaintiff.”).
Plaintiff next alleges that Defendants Ward, Toole, Emmons, and Smith denied him sufficient access to his stored legal materials, thereby denying him access to the courts in violation of the First Amendment. Am. Compl. 68, ECF No. 12. Plaintiff also contends that Defendants Ward, Toole, Emmons, Perry, Ammons, and Kimbrel violated Plaintiff's First Amendment rights by denying him access to legal materials that were stored on S.D. cards, flash drives, and CDs, thereby denying him access to the courts in violation of the First Amendment. Id. These allegations are insufficient to state a constitutional claim.
“Access to the courts is clearly a constitutional right, grounded in the First Amendment, the Article IV Privileges and Immunities Clause, the Fifth Amendment, and/or the Fourteenth Amendment.” Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (citing Christopher v. Harbury, 536 U.S. 403, 415 n. 12 (2002)). “To have standing to seek relief under this right, however, a plaintiff must show actual injury by ‘demonstrat[ing] that a nonfrivolous legal claim ha[s] been frustrated or . . . impeded.'” Jackson v. State Bd. of Pardons & Paroles, 331 F.3d 790, 797 (11th Cir. 2003) (alterations and omission in original) (citing Lewis v. Casey, 518 U.S. 343, 353 (1996)). Plaintiff avers that because he was unable to access his stored legal materials, he “was unable to rebut contentions made in the District Attorney's and Attorney General's Appeal briefs” in the direct appeals of his criminal conviction. Am. Compl. 58, ECF No. 12. Thus, according to Plaintiff, he suffered an actual injury when his conviction was affirmed on October 17, 2016. Id.
Plaintiff avers that he was housed in the Georgia State Prison (“GSP”) in Reidsville, Georgia from April 7, 2014 through April 19, 2018. Am. Compl. 8, ECF No. 12. Thus, the only actual injury Plaintiff alleges he suffered-the 2016 affirmance of his conviction-necessarily occurred at GSP. Plaintiff, however, has not named any GSP prison officials as Defendants in this case, nor has he alleged specific facts showing that Defendants Ward, Toole, Emmons, Smith, Perry, Ammons, or Kimbrel had anything to do with prison officials' decisions to deny Plaintiff access to his legal materials while he was at GSP. Because Plaintiff has failed to allege that he suffered an actual injury as the result of the actions of Defendants Ward, Toole, Emmons, Smith, Perry, Ammons, or Kimbrel, his claims that these Defendants deprived him of access to the courts by denying him access to his legal materials should be dismissed.
It should also be noted that Plaintiff does not appear to allege that he has suffered any “actual injury” as a result of the alleged denial of photocopies or law library access at MSP or VSP. Thus, his access-to-courts claims related to these denials could also be dismissed for this reason.
In addition, to the extent Plaintiff contends that he suffered an “actual injury” because his conviction was affirmed, his access-to-courts claims are barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477, 487 (1994). In Heck, the Court held that “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. If it does, then Heck requires the plaintiff's claims to be dismissed unless he “can demonstrate that the conviction or sentence has already been invalidated.” Id.
To show that he suffered an actual injury in this case, Plaintiff must allege that his underlying claim-i.e., the direct appeal of his criminal conviction-was nonfrivolous and that Defendants' actions impeded that claim. See, e.g., Jackson, 331 F.3d at 797. Plaintiff alleges that he was unable to fully research his appeal briefs because Defendants refused to provide him access to his legal materials, and he was injured when his conviction was affirmed. In other words, Plaintiff claims that he would have prevailed on his direct appeal had Defendants allowed him to access his legal materials. If these allegations were to result in a successful judgment on Plaintiff's behalf, however, that judgment would necessarily imply the invalidity of his criminal conviction. Plaintiff's claims must therefore be dismissed unless he “can demonstrate that the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487. Plaintiff makes no such allegation. His access-to-courts claims are therefore Heck-barred and can also be dismissed as such. See Moore v. Wheeler, 520 Fed.Appx. 927, 928 (11th Cir. 2013) (per curiam) (finding access-to-courts claim barred by Heck where prisoner's argument was that “state appellate courts would not have affirmed his conviction and sentence if the trial court had provided them with a record of his trial and sentencing”); see also Sampson v. Garrett, 917 F.3d 880, 882 (6th Cir. 2019) (holding that Heck barred claim that defendants prevented plaintiff from using trial transcripts and other materials in unsuccessful direct appeal because plaintiff “could prevail on that claim only if he showed that information could make a difference in a nonfrivolous challenge to his convictions, ” i.e., “only if he implied the invalidity of his underlying judgment” (emphasis in original)).
3. Plaintiff's Claims Concerning the Conditions of his Confinement on Tier II
Plaintiff next alleges that various Defendants violated his First Amendment and RLUIPA rights by placing certain restrictions on the conditions of his confinement in Tier II. See, e.g., Am. Compl. 67-68, ECF No. 12. These claims are improperly joined with Plaintiffs' remaining claims, all of which concern the forcible shaving incidents that occurred in each prison.
As Plaintiff was previously advised, the Federal Rules of Civil Procedure permit a plaintiff to join only related claims and defendants in a single complaint. In order to properly join defendants under Federal Rule of Civil Procedure 20(a)(2), the plaintiff must establish that he is asserting a right to relief against them “jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences, ” and that “any question of law or fact common to all defendants will arise in the action.” The Eleventh Circuit applies the “logical relationship” test to determine whether claims arise from the same transaction or occurrence for joinder purposes. See, e.g., Smith v. Trans-Siberian Orchestra, 728 F.Supp.2d 1315, 1319 (M.D. Fla. 2010) (citing Republic Health Corp. v. Lifemark Hosp. Corp. of Fla., 755 F.2d 1453, 1455 (11th Cir. 1985)). “Under this test, there is a logical relationship when the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendant.” Republic Health Corp., 755 F.2d at 1455 (internal quotation marks omitted). In exercising its discretion regarding joinder, the Court should “provide a reasoned analysis that comports with the requirements of the Rule” and “based on the specific fact pattern presented by the plaintiffs and claims before the court.” Hagan v. Rogers, 570 F.3d 146, 157 (3d Cir. 2009). The Court's discretion is also informed by the PLRA and its goals of preventing unwieldy litigation, ensuring the payment of filing fees, and limiting prisoners' ability to bring frivolous cases. See, e.g., George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
The standard for whether claims arise from the same transaction or occurrence for Rule 20 purposes is the same as that used for compulsory counterclaims under Federal Rule of Civil Procedure 13. See Smith, 728 F.Supp.2d at 1319.
Plaintiff alleges that
[a]ll Defendants are properly joined under Fed.R.Civ.P. 20(a)(2) because any right to relief is asserted against them jointly, severally, or in the alternative with respect to [a] series of transactions or occurrences, to wit: all Defendants have either adopted or implemented the GDC half-inch beard rule, or have taken some action adverse to Plaintiff as a result of his refusal to shave his beard for religious reasons[.]Am. Compl. 7, ECF No. 12. Plaintiff further states that “questions of law or fact common to all Defendants will arise in the action either [sic] pertaining to Defendants' substantially burdening Plaintiff's religious exercise by taking adverse actions against him for refusing to shave his beard.” Id.
Plaintiff's contention that his claims concerning the GDC's grooming policies arise from the same series of transactions as his Tier II conditions-of-confinement claims lacks merit. These two sets of claims are simply not logically related: they do not rest on the same operative facts, primarily because Plaintiff does not need to establish that he violated the prison's grooming policies (or otherwise show why he was confined to Tier II) to prevail on his claims that various conditions of his confinement on Tier II violate his First Amendment or RLUIPA rights. See Republic Health Corp., 755 F.2d at 1455. Indeed, Plaintiff has not even demonstrated that each challenged action taken by each Defendant in this case resulted from a violation of the grooming policy. For example, Disciplinary Report Number 786819 was issued because Plaintiff possessed a cell phone, not because Plaintiff violated the grooming policy. Am. Compl. 42, ECF No. 12. In addition, Plaintiff alleges that he was placed on Tier II when he arrived at MSP not for violating the grooming policy, but because he had been on Tier II at his previous prison. Id. at 31.
When two sets of claims function independently of one another in this manner, joinder is not appropriate. See State Distributors, Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416-17 (10th Cir. 1984) (affirming denial of joinder where allegations against proposed defendant were “only tangentially related to the issues and series of transactions” in the pending case because “[d]ifferent elements of proof are required for the proposed cause of action, involving different questions of fact and law”); BBK Tobacco & Foods, LLP v. 7th St. Vill. Farm Inc., 1:17-CV-4079-GHW, 2017 WL 8723938, at *1 (S.D.N.Y. June 15, 2017) (“A logical relationship does not exist where a plaintiff's claims are ‘independent and distinct from the allegations against the [other] Defendants[.]'” (alteration in original) (quoting Deskovic v. City of Peekskill, 673 F.Supp.2d 154, 166, 168 (S.D.N.Y. 2009)). The Eleventh Circuit has also held that more than just a minimal connection between a series of different transactions or occurrences must exist before joinder is proper. Skillern v. Ga. Dep't of Corr. Comm'r, 379 Fed.Appx. 859, 860 (11th Cir. 2010) (per curiam) (holding that prisoner failed to demonstrate that claims against defendants arose out of the same transaction, occurrence, or series of transactions or occurrences where the only “connection between the people and events [the prisoner] described” was that the actions “showed indifference to his failing health”). Plaintiff has thus failed to establish that the requirements of Rule 20 are met in this action with respect to his claims concerning Tier II prisoners' lack of access to books, magazines, newspapers, photographs, radio, CDs/cassettes, CD/cassette players, JPay tablets, email access, certain Islamic religious services and meals, a digital Qur'an, Islamic and educational DVDs and software, prayer oil, miswak, and Halal food and hygiene items. Am. Compl. 66-67, ECF No. 12.
It is accordingly recommended that these claims be dismissed without prejudice. See Fed. R. Civ. P. 21; see also DirecTV, Inc. v. Leto, 467 F.3d 842, 844-45 (3d Cir. 2006) (holding that “district judges have discretion to remedy misjoinders either by severing claims or dismissing them without prejudice”); George, 507 F.3d at (noting that “[u]nrelated claims against different defendants belong in different suits, not only to prevent the sort of morass that this 50-claim, 24-defendants suit produced but also to ensure that prisoners pay the required filing fees”). Because of the complexity of Plaintiff's allegations and the number of defendants involved in these improperly joined claims, it is a better exercise of the Court's discretion to dismiss the claims without prejudice to Plaintiff's ability to raise them in a separate action, rather than to sever them.
4. Plaintiff's Claims Related to the Individual Forcible Shaving Incidents
Plaintiff's remaining claims center on his charges that prison officials violated his statutory and constitutional rights by forcibly shaving him and by punishing him for refusing to shave his beard. Certain of these claims require further factual development, as discussed below.
a. Section 1983 Claims against the GDC
As a preliminary matter, to the extent Plaintiff seeks to raise § 1983 claims against the GDC, such claims are subject to dismissal. The GDC is a state entity entitled to Eleventh Amendment immunity. See Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989) (“The Eleventh Amendment bars [the plaintiff's § 1983] action against the Georgia Department of Corrections . . . . This Eleventh Amendment bar applies regardless of whether the plaintiff seeks money damages or prospective injunctive relief.”); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 70 (1989) (states and governmental entities that are considered “arms of the state” are not considered “persons” capable of being sued under § 1983).
b. Eighth Amendment Claims
Plaintiff contends that various Defendants violated his Eighth Amendment rights when they forcibly shaved him at MSP and VSP. See, e.g., Skrtich v. Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002) (holding that force that is applied to a prisoner “maliciously and sadistically to cause harm” can violate the Eighth Amendment and give rise to claims under § 1983). On June 18, 2018, Plaintiff alleges that Defendants McLaughlin and Kegler “assaulted him, dragged him by his hands cuffed behind his back, choked him, slammed him into a metal chair, [and] held him down while choking him while an inmate barber shaved him with unsanitized clippers.” Am. Compl. 16, ECF No. 12. Plaintiff states that he was handcuffed at the time. Id. As a result of this forcible shaving, Plaintiff suffered cuts, bruises, a “crushed right toe, ” and shoulder, back, and knee injuries. Id. At this early stage of the litigation, the Court cannot say Plaintiff's Eighth Amendment excessive force claims against Defendants McLaughlin and Kegler are entirely frivolous. They shall proceed for further factual development.
On September 18, 2018, Plaintiff alleges that Defendant Toole instructed Defendants Perry, Eaddie, Sales, Walker, and Kegler to shave Plaintiff's beard. Am. Compl. 17-18, ECF No. 12. These Defendants, in turn, directed Defendants Kegler, Childs, Black, Lockett, Pope, and Mosley to forcibly shave Plaintiff. Id. at 18. Plaintiff contends that “without provocation, ” Defendants Kegler, Childs, Black, Lockett, Pope, and Mosley sprayed Plaintiff with MK-9, a chemical agent, prior to handcuffing Plaintiff. Id. These Defendants then forcibly shaved Plaintiff with unsanitized clippers and without decontaminating Plaintiff first. Id. The forcible shaving caused Plaintiff to suffer injuries to his back, shoulders, knees, head, and wrists. Id. Plaintiff also states that the delay in allowing him to decontaminate caused him to suffer from “chemical burns to his face and genitals for hours and to his chest, hands, and arms for longer than a week.” Id.
Plaintiff neglected to list Defendant Perry in the caption of his Amended Complaint. Because Plaintiff has clearly identified this Defendant in his statement of claims, the Court assumes that Plaintiff intended to list Defendant Perry among the named Defendants in this case. See § III.B.5.
Further, Plaintiff states that Defendants did not decontaminate his cell or bedding, causing him to suffer from “severe allergy and sinus problems for almost a month.” Id. These claims shall also proceed for further factual development.
On February 18, 2019, Plaintiff contends that Defendants Forbes, Zirkle, Kern, McCullen, Watkins, Emmons, Jackson, and Thomas forcibly shaved Plaintiff with unsanitized clippers. Am. Compl. 21, ECF No. 12. Plaintiff contends he was “slammed on the ground, ” “choked, ” and his “leg irons and handcuffs [were] placed on him too tight and twisted, cutting his wrists and ankles.” Id. Plaintiff also states that he suffered a “cut to his neck, nerve damages to both hands and back, and bruises all over.” Id. These claims will also proceed for further factual development.
Finally, on July 12, 2019, Plaintiff contends that Defendants Hall, Aubrey Williams, Foster, Ford, Miller, Shropshire, and “others” sprayed Plaintiff with a chemical agent, removed him from his cell, and again forcibly shaved him with unsanitized clippers. Am. Compl. 22, ECF No. 12. Plaintiff again suffered from cuts, nerve damage, bruising, and chemical burns as a result of this incident. Id. at 22-23. The claims against these Defendants shall also proceed for further factual development.
Plaintiff also alleges that several individuals either directly participated in the forcible shaving incidents he describes in his Amended Complaint or failed to intervene while other Defendants used excessive force against him. Plaintiff, however, does not know the names of these individuals and has simply identified them as “Doe” defendants. Generally, “fictitious party pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (per curiam). The only exception to this rule is when the plaintiff's description of the defendant is so specific that the party may be identified for service even though his actual name is unknown. See Id. (citing Dean v. Barber, 951 F.2d 1201, 1215-16 (11th Cir. 1992)). Therefore, to proceed against an unnamed defendant, a plaintiff must provide a “description of some kind which is sufficient to identify the person involved so that process can be served.” Dean, 951 F.2d at 1216 (internal quotation marks omitted).
While a “relevant consideration when determining whether a plaintiff can pursue a claim against an unnamed defendant” is whether discovery might reveal the unidentified defendant's name, it is not sufficient absent some way of identifying these defendants for service. Vielma v. Gruler, 808 Fed.Appx. 872, 880-81 (11th Cir. 2020) (per curiam) (observing that “our precedent has never permitted John Doe pleading solely on the ground that discovery might reveal an unnamed defendant's identity” instead requiring “an unambiguous description of a defendant that enables service of process”); see also Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1318 n.4 (11th Cir. 2015) (declining to address claims against “John Doe Deputies” because they were “not proper parties” in the action); Richardson, 598 F.3d at 738 (plaintiff's description of “John Doe (Unknown Legal Name, Guard, Charlotte Correctional Institution” was “insufficient to identify the defendant among the many guards employed at CCI”). Plaintiff's claims against the Doe Defendants involved in the forcible shaving incidents should therefore be dismissed without prejudice. As noted below, however, at least some of Plaintiff's claims are proceeding for further factual development in this case; if discovery reveals the names of the other potential defendants, Plaintiff may “amend his pleadings or file a new case once he knows the name of other responsible parties.” Vielma, 792 F.3d at 872.
c. Religious Freedom Claims
Plaintiff also contends that (1) each forcible shaving incident violated the First Amendment and RLUIPA, (2) the decisions to place and keep him on Tier II violated the First Amendment and RLUIPA, and (3) various disciplinary reports issued by Defendants violated the First Amendment and RLUIPA. In other words, Plaintiff contends that the prison officials violated his religious freedom rights when they applied the allegedly unlawful GDC policies to him.
To the extent Plaintiff contends that the individual Defendants involved in each forcible shaving incident violated his First Amendment rights by applying an unconstitutional custom or policy to him, such claims may proceed for further factual development. Plaintiff may also bring a RLUIPA claim based on these allegations, but such claim shall be limited to seeking prospective injunctive relief against the GDC. See, e.g., Gholston v. Powell, No. 5:17-CV-479 (MTT), 2019 WL 4305507, at *4 (M.D. Ga. Sept. 11, 2019) (citing 42 U.S.C. § 2000cc-2(a); Sossamon v. Texas, 563 U.S. 277, 293 (2011). Because Plaintiff has named the GDC as a Defendant in this action, his RLUIPA claims against the State of Georgia may be dismissed as redundant. Cf. Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991) (approving the dismissal of official capacity defendants whose presence was merely redundant).
Plaintiff was recently transferred to Smith State Prison. A prisoner's transfer from one facility to the other often moots the prisoner's request for injunctive relief. See, e.g., Davila v. Marshall, 649 Fed.Appx. 977, 979-80 (11th Cir. 2016) (per curiam). In this case, however, Plaintiff has alleged facts indicating that Defendants were implementing GDC-wide policies. At this early stage of the litigation, the Court therefore cannot conclude that Plaintiff's RLUIPA claims against the GDC are necessarily moot.
To the extent Plaintiff has alleged that he was disciplined for refusing to shave his beard, he might also state a RLUIPA or First Amendment claim. See, e.g., Muhammad v. Wainwright, 839 F.2d 1422, 1422-23 (11th Cir. 1987) (discussing claims that prisoner's First Amendment rights were violated when he was disciplined for refusing to respond to given name rather than religious name). As previously mentioned, the Eleventh Circuit has indicated that this type of First Amendment claim must proceed in a § 1983 action. Daker, 805 Fed.Appx. at 851. Plaintiff, however, has not pleaded facts sufficient to show that each of the alleged disciplinary actions about which he complains was somehow related to the exercise of his religion.
Plaintiff alleges facts suggesting that the disciplinary report issued by Defendant McLaughlin on June 13, 2018 was related to Plaintiff's refusal to shave and the resulting forcible shaving incident on June 12, 2018. Plaintiff also alleges that the June 19, 2018 Tier II review cited this disciplinary report to justify Plaintiff's placement or retention on Tier II. Am. Compl. 38, ECF No. 12. Plaintiff also alleges facts suggesting that Disciplinary Report Numbers 777785, 777791, 777816, and 777981 were related to Plaintiff's refusal to shave and the resulting forcible shaving incident on September 18, 2018. Am. Compl. 38-39, ECF No. 12. Likewise, Plaintiff alleges facts suggesting that Disciplinary Report Number 797628 was related to Plaintiff's refusal to shave and the forcible shaving incident on February 18, 2019. Id. at 42. Plaintiff further claims that Disciplinary Report Number 797628 was used “as an excuse to place Plaintiff on Tier II Phase I” in March 2019. Id. These claims shall proceed for further factual development.
It should be noted here that at least some of the disciplinary reports received by Plaintiff were for alleged “assault” and “projecting, ” i.e., spitting, on Defendants. These claims are being permitted to proceed at this early stage of the litigation only because some of the reports of assault and projecting were issued alongside reports that appear related to Plaintiff's refusal to shave and because it is unclear whether Plaintiff is challenging the veracity of these reports.
Plaintiff, however, has not pleaded sufficient facts to show that the remaining disciplinary reports and Tier II placement or retention decisions were based on any sort of religious exercise. As previously observed, Disciplinary Report Number 786819 was issued because Plaintiff possessed a cell phone. Am. Compl. 66, ECF No. 12. In addition, Plaintiff alleges that he was automatically placed on Tier II when he arrived at MSP in April of 2018 simply because he had been on Tier II at his previous prison. Id. at 31 (“Upon Petitioner's [sic] April 19, 2018 transfer from GSP to MSP, he was told . . . that, if he was in Tier II segregation at GSP, then he would be placed in Tier II Segregation at MSP, and he was.”). Plaintiff also fails to provide the reasons Defendants placed or retained him on Tier II with respect to the remaining placement or retention decisions Plaintiff challenges. See Id. at 33-34. Plaintiff has therefore failed to show that these incidents give rise to any First Amendment or RLUIPA claims, and such claims should be dismissed without prejudice.
5. Miscellaneous Remaining Claims
Plaintiff has listed “Dental Director” John Doe and “Food Service Director” John Doe as Defendants in the caption of the Amended Complaint, but he fails to clearly identify these Defendants in the body of his Amended Complaint or describe how these Defendants violated his constitutional rights. As such, the claims against these two Defendants should be dismissed without prejudice. Douglas v. Yates, 535 F.3d 1316, 1321-22 (11th Cir. 2008) (dismissal of defendants appropriate where plaintiff failed to allege facts associating defendants with a particular constitutional violation).
In addition, Plaintiff mentions several Defendants in his statement of facts narrative, but he does not identify these Defendants or raise any specific claims against them in his statement of claims. Plaintiff has filed numerous, interrelated cases regarding these facts in this case, see n.3 supra, and he acknowledges that he does not intend to raise every possible claim in this particular action, Am. Compl. 11 n.4, ECF No. 12 (stating that certain incidents are mentioned to support joinder and Plaintiff's allegations that he is in imminent danger of serious physical injury). Given these facts, coupled with Plaintiff's efforts to clearly link some Defendants to specified constitutional violations in his statement of claims (and his failure to do so with respect to the remaining Defendants), it is assumed that the enumerated claims set forth in Plaintiff's statement of claims are the only claims Plaintiff is raising in the above-captioned action. See Fed. R. Civ. P. 10(b) (requiring a party to “state its claims or defenses in numbered paragraphs”). Plaintiff's claims against the Defendants not specifically mentioned in the statement of claims, including Defendants Blakely, Wittington, Brockington, Gibson, Lake, Streeter, MSP Unit Manager Jackson, VSP Chief Counselor Davis, Stanley Williams, Bobbitt, and Deputy Warden of Security Doe should therefore be dismissed without prejudice.
IV. Conclusion
Based on the foregoing, the following claims shall proceed for further factual development in this action:
1) Defendants GDC, McLaughlin, and Kegler violated Plaintiff's rights under RLUIPA and the First and Eighth Amendments with respect to the forcible shaving of Plaintiff on June 13, 2018, Am. Compl. 64, ECF No. 12;
2) Defendants GDC and McLaughlin violated Plaintiff's First Amendment and RLUIPA rights by issuing him a disciplinary report concerning the June 12, 2018 forcible shaving, id. at 65;
3) Defendants GDC, McLaughlin, Kegler, and Jeffries violated Plaintiff's RLUIPA and First Amendment rights with respect to his June 2018 Tier II 90-day review, id.;
4) Defendants GDC, Toole, Perry, Eaddie, Sales, Kegler, Walker, Childs, Black, Pope, Lockett, and Mosely violated Plaintiff's First and Eighth Amendment rights with respect to the forcible shaving of Plaintiff on September 18, 2018, id. at 64;
5) Defendants GDC, Perry, Sales, Childs, Black, Pope, Lachasity Davis, MSP Guard Hall, and Staten violated Plaintiff's RLUIPA and First Amendment rights by issuing him Disciplinary Report Numbers 777785, 777791, and 777816 concerning the September 18, 2018 forcible shaving, id. at 65-66;
6) Defendants GDC, Perry, Eaddie, Childs, Lockett, Pope, Lachasity Davis, MSP Guard Hall, and Staten violated Plaintiff's RLUIPA and First Amendment rights by issuing him Disciplinary Report Number 777981 concerning the September 18, 2018 forcible shaving, id. at 66;
7) Defendants GDC, Toole, Emmons, Derron Jackson, Miles, Forbes, Zirkle, Kern, Watkins, and McCullen violated Plaintiff's rights under RLUIPA and the First and Eighth Amendments with respect to the forcible shaving of Plaintiff on February 18, 2019, id. at 64;
8) Defendants GDC, Emmons, Leann Smith, Zirkel, Kern, and Richardson violated Plaintiff's RLUIPA and First Amendment rights by issuing him Disciplinary Report Number 797629 concerning the February 18, 2019 forcible shaving, id. at 66;
9) Defendants GDC, Emmons, Leann Smith, Kern, and Richardson violated Plaintiff's RLUIPA and First Amendment rights with respect to his March 2019 Tier II 90-day review, id. at 65; and
10) Defendants GDC, Toole, Emmons, Shropshire, Mims, Pineiro, Miles, VSP CERT Sergeant Hall, Aubrey Williams, Ford, Foster, and Miller violated Plaintiff's rights under the RLUIPA and the First and Eighth Amendment with respect to the forcible shaving of Plaintiff on July 19, 2019, id. at 64.
Plaintiff mentions “Davis” and “Lachasity Davis” at different points in his Amended Complaint. It appears that Plaintiff intends to sue Lachasity Davis in reference to the claims proceeding for further factual development. See, e.g., Am. Compl. 39, ECF No. 12.
Outside of his caption, Plaintiff fails to clearly distinguish between MSP Guard Hall and VSP CERT Sergeant Hall. It is assumed that these are two different individuals and that MSP Guard Hall is sued in reference to claims that occurred at MSP and VSP CERT Sergeant Hall is sued in reference to claims that occurred at VSP.
Plaintiff mentions “Jackson” and “Derron Jackson” at different points in his Amended Complaint. Plaintiff sometimes spells “Derron” as “Derren.” Because Derron Jackson is employed at VSP where this incident took place, it is assumed that Plaintiff intends to sue Derron Jackson in reference to this claim.
In addition, it is RECOMMENDED that the following claims be DISMISSED from this action in accordance with Federal Rule of Civil Procedure 21:
1) Georgia, GDC, Dozier, Ward, Koon, Upton, Toole, Holt, Stanton, Ammons, Lewis, Turner, Myrick, Fountain, C.L. Smith, Burse, Crickmar and Danforth's policy denying Tier II prisoners access to books, magazines, newspapers, photographs, radio, CDs/cassettes, CD/cassette players, JPay tablets, and email access violates the First Amendment and RLUIPA;
2) The GDC's policy of denying Plaintiff access to Jumu'ah Islamic services on Tier II violates the First Amendment and RLUIPA;
3) The GDC's policy of denying Plaintiff access to Ta'lim Islamic services on Tier II violates the First Amendment and RLUIPA;
4) Defendants GDC, Ward, Perry, and Emmons violated the First Amendment and RLUIPA by denying Plaintiff's request for a digital Qur'an;
5) Defendants GDC, Ward, Perry, and Emmons violated the First Amendment and RLUIPA by denying Plaintiff's request for Islamic and educational DVDs;
6) Defendants GDC, Ward, Perry, and Emmons violated the First Amendment and RLUIPA by denying Plaintiff's request for Islamic and educational software;
7) Defendants GDC, Ward, Perry, and Emmons violated the First Amendment and RLUIPA by denying Plaintiff's request for miswak;
8) Defendants GDC, Ward, Perry, and Emmons violated the First Amendment and RLUIPA by denying Plaintiff's request for Halal hygiene items; and
9) Defendants GDC, Ward, Perry, and Emmons violated the First Amendment and RLUIPA by denying Plaintiff's request for Halal food.
It is further RECOMMENDED that Plaintiff's remaining claims be DISMISSED without prejudice for the reasons set forth above. Plaintiff's pending motion to expedite (ECF No. 39) is DENIED as moot.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable Marc T. Treadwell, United States District 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 the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
ORDER FOR SERVICE
The Court has found that Plaintiff has made colorable constitutional violation claims against the GDC, McLaughlin, Kegler, Jeffries, Toole, Perry, Eaddie, Sales, Walker, Childs, Black, Pope, Lockett, Mosely, Lachasity Davis, MSP Guard Hall, VSP CERT Sergeant Hall, Staten, Derron Jackson, Miles, Forbes, Zirkle, Kern, Watkins, McCullen, Leann Smith, Richardson, Emmons, Shropshire, Mims, Pineiro, Aubrey Williams, Ford, Foster, and Miller. Because Plaintiff is not proceeding in forma pauperis in this case, it is ORDERED that Plaintiff serve Defendants 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 the pendency of 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 a change of address may result in the dismissal of a party's pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff is also advised that he must diligently prosecute his Complaint or face the possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. Defendants are similarly 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 AND SERVICE OF MOTIONS, PLEADINGS, 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.
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 defendant 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/her or served upon him/her 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 shall be required to respond to any such requests 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.
SO ORDERED AND RECOMMENDED