Opinion
7:23-cv-00052-WLS-TQL
09-14-2023
CARLTON MCKISSIC, Plaintiff, v. WARDEN JACOB BEASLEY, Defendant.
ORDER & RECOMMENDATION OF DISMISSAL
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE
Plaintiff Carlton McKissic, a prisoner in Valdosta State Prison in Valdosta, Georgia, filed a civil rights complaint under 42 U.S.C. § 1983. Compl., ECF No. 1. Plaintiff also filed a motion for leave to proceed in forma pauperis. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2. Thereafter, Plaintiff's motion to proceed in forma pauperis was granted, and Plaintiff was ordered to pay an initial partial filing fee of $63.37. Order, ECF No. 4. Following an order to show cause, Plaintiff has now filed a response with documentation asserting that the money in his account is from stimulus funds that he is unable to access. Response, ECF No. 9. Plaintiff supports this assertion with a transaction account statement that shows that his account has a “stimulus amount” of $1,291.96, and a “spendable amount” of $0.00. Attach. to Response, ECF No. 9-2.
As this new documentation demonstrates that Plaintiff is unable to prepay any portion of the filing fee, the requirement that Plaintiff pay an initial partial filing fee is now WAIVED, and this case may proceed. Plaintiff remains obligated to pay the balance of the $350.00 filing fee through installment payments as outlined in the previous order. Thus, Plaintiff's complaint is now ripe for preliminary review.
Before turning to that review, however, Plaintiff has filed a number of motions that must be addressed. First, it is RECOMMENDED that Plaintiff's motions seeking his release from prison (ECF Nos. 5 & 14) be DENIED. Next, the Clerk is DIRECTED to STRIKE Plaintiff's motion to appoint counsel (ECF No. 8), as he did not file a signed copy of that motion when directed to do so. Additionally, Plaintiff's discovery motions (ECF Nos. 10 & 15) are DENIED.
Turning to the complaint, Plaintiff's motion to amend (ECF No. 12) is GRANTED. Nevertheless, because he fails to state a claim on which relief may be granted, it is RECOMMENDED that the complaint be DISMISSED WITHOUT PREJUDICE for failure to state a claim. Finally, it is also RECOMMENDED that Plaintiff's motion for compensatory damages (ECF No. 16) be DENIED.
I. Motions Seeking Release
Plaintiff titled his first motion “Petition For a Mercy Prayer Consideration to Obtain Justice For a Cause of Action.” Mot., ECF No. 5. In this motion, Plaintiff asks the Court to review the records of his criminal case to determine whether he should be released from custody. Id. at 1-2. Plaintiff also asserts that his wife is suffering from health problems, and he seeks release on that basis as well. Id. at 2-5. Plaintiff has also filed a motion that he titled a motion for a “meeting of the minds,” in which he asserts that his counsel in his criminal case was ineffective and asks that his sentence be recalculated. Mot. for Meeting of the Minds, ECF No. 14.
These motions are in the nature of motions for injunctive relief seeking release. A temporary restraining order (“TRO”) or preliminary injunction is a drastic remedy used primarily to preserve the status quo rather than to grant most or all of the substantive relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982).Factors a movant must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the TRO would inflict on the non-movant; and (4) the TRO would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (per curiam).
The standard for obtaining a TRO is the same as the standard for obtaining a preliminary injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) (per curiam); Windsor v. United States, 379 Fed.Appx. 912, 916-17 (11th Cir. 2010) (per curiam).
Here, Plaintiff is asking the Court to review his criminal case and release him based on problems with his criminal case and his wife's health. These things are not related to the basis for Plaintiff's complaint, which is that he was attacked and injured in the prison. Moreover, the relief that Plaintiff is seeking - release from incarceration - is not available in a 42 U.S.C. § 1983 case. Instead, if Plaintiff wants to challenge his criminal conviction and sentence, he must seek that relief through a 28 U.S.C. § 2254 petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Under these circumstances, it is RECOMMENDED that these motions (ECF No. 5 & 14) be DENIED.
II. Motion to Appoint Counsel
Plaintiff filed a motion to appoint counsel, asserting that counsel would be able to assist him in gathering evidence, issuing subpoenas, and examining witnesses. Mot. to Appoint Counsel, ECF No. 8. Plaintiff did not sign this motion, and the Clerk's office issued a notice of deficiency, informing Plaintiff that he must refile the signed document within twenty-one days. Plaintiff has not filed a signed copy of the motion to appoint counsel.
Rule 11 of the Federal Rules of Civil Procedure requires that all motions be signed by the party personally if the party is not represented. The Court is required to “strike an unsigned paper unless the omission is promptly corrected after being called to the . . . party's attention.” Fed.R.Civ.P. 11(a). Plaintiff did not correct this error when it was called to his attention. Therefore, the CLERK is DIRECTED to STRIKE the motion to appoint counsel (ECF No. 8).
III. Motions for Discovery
Plaintiff has also filed two motions seeking discovery materials. Mot. to Produce Docs., ECF No. 10; Signed Second Mot. to Produce Docs., ECF No. 15. Discovery has not yet begun in this case. Moreover, if this case proceeds to discovery, Plaintiff must serve any discovery requests directly on any defendants remaining in the case. Plaintiff is not to file discovery requests with the Court, and Plaintiff should only file motions relating to discovery if the defendants have failed to comply with his proper discovery requests. See Fed.R.Civ.P. 37 (regarding failure to make disclosures or cooperate in discovery). Therefore, Plaintiff's motions for the production of documents (ECF Nos. 10 & 15) are DENIED. Having addressed these motions, the undersigned now turns to the preliminary review of Plaintiff's complaint.
IV. Preliminary Review of Plaintiff's Complaint
A. Standard of Review
Because the Court has granted Plaintiff leave to proceed in forma pauperis, his complaint is subject to a preliminary review. See 28 U.S.C. § 1915A(a) (requiring the screening of prisoner cases) & 28 U.S.C. § 1915(e) (regarding in forma pauperis proceedings). When performing this review, the court must accept all factual allegations in the complaint as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings are also “held to a less stringent standard than pleadings drafted by attorneys,” and thus, the Court “liberally construe[s]” pro se claims. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 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 Cty, 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).
B. Factual Allegations
In the complaint, Plaintiff asserts that, on August 6, 2022, Plaintiff's building was called for pill call. Compl. 5, ECF No. 1. After receiving his medication, Plaintiff was stabbed in the back with a knife by another inmate. Id. Officer Williams heard Plaintiff hit the floor and turned around to see Plaintiff lying on the floor and the other inmate attempting to run past her. Id. Williams yelled for Officers Truett and Reeves to come over there. Id. Reeves knelt beside Plaintiff and told Plaintiff that he had been stabbed. Id. Plaintiff said that he could not feel his legs. Id. Plaintiff also tried to move but could not do so. Id.
Nurse Godfree came over to Plaintiff and applied pressure to the wound. Id. They then waited for the ambulance to arrive, and Plaintiff was taken to the hospital where he had immediate surgery. Id. Plaintiff filed this action naming Warden Jacob Beasley as a defendant. Id. at 4. Plaintiff indicates that he is seeking damages because the prison was understaffed and Warden Beasley failed to protect Plaintiff from this harm. Id. at 6.
Plaintiff has also filed a motion to amend his complaint, which is now GRANTED. Mot. to Amend, ECF No. 12. In the motion, Plaintiffs seeks to add Captain Reeves, Deputy Warden Ralph Shropshire, and Deputy Warden of Security Charlie Marcus as defendants. Id. at 1-2. Plaintiff asserts that these individuals were responsible for his safety and failed to protect him. Id. Thus, these defendants will also be considered in connection with Plaintiff's claims below.
C. Plaintiff's Claims
Plaintiff's allegations raise a potential claim for deliberate indifference to Plaintiff's safety. To state an Eighth Amendment claim for exposure to unsafe conditions, a prisoner must allege facts to show the existence of a prison condition that is extreme and poses an unreasonable risk to the prisoner's health or safety. See Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). Additionally, the prisoner must allege facts to show that the defendant acted with deliberate indifference to the condition, which requires that the defendant knew that an excessive risk to health or safety existed but disregarded that risk. Id. at 1289-90. If the defendant took action that reasonably responded to the risk, the defendant will not be held liable, even if the harm was not averted. Id. at 1290.
The United States Supreme Court has recognized that “prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jiminez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). To that end, “occasional, isolated attacks by one prisoner on another may not constitute cruel and unusual punishment, [but] confinement in a prison where violence and terror reign is actionable.” Purcell ex rel. Estate of Morgan v. Toombs Cty., 400 F.3d 1313, 1320 (11th Cir. 2005) (quoting Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973)). To establish deliberate indifference based on a generalized risk of harm, a plaintiff must allege facts showing “that serious inmate-on-inmate violence was the norm or something close to it.” Id. at 1322.
Here, the only defendant that Plaintiff mentions in his statement of facts is Captain Reeves. With regard to Reeves, Plaintiff asserts that he was one of the officers Officer Williams called over after Plaintiff was stabbed. Reeves informed Plaintiff that he had been stabbed. Nothing in Plaintiff's statement of facts indicates that Reeves was aware of any potential risk to Plaintiff of being stabbed and was deliberately indifferent to that risk.
Likewise, Plaintiff does not allege any facts to show that Warden Beasley, Deputy Warden Shropshire, or Deputy Warden Marcus had any reason to believe that Plaintiff was at risk of harm before he was stabbed. Moreover, Plaintiff does not assert any facts showing that this was anything other than an isolated incident. In this regard, Plaintiff's allegations do not show at all that there is such pervasive violence in the prison that these defendants could be liable based on any generalized risk of harm. Therefore, Plaintiff's allegations do not state a claim on which relief may be granted, and it is RECOMMENDED that this complaint, as amended, be DISMISSED WITHOUT PREJUDICE for failure to state a claim.
V. Motion for Compensatory Damages
Plaintiff has also filed a separate motion for compensatory damages in this case. Mot. for Compensatory Damages, EF No. 16. Having recommended that this complaint be dismissed for failure to state a claim, it is further RECOMMENDED that the motion for compensatory damages be DENIED.
VI. Objections
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this order and recommendation with the United States District Judge to whom this case is assigned WITHIN FOURTEEN (14) DAYS after being served with a copy of this order and 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. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. 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.
SO ORDERED and RECOMMENDED.