Opinion
1:21-cv-00114-LAG-TQL
07-08-2021
DOYLE ANTHONY NORWOOD, Plaintiff, v. WARDEN ALLEN DILLS, et al., Defendants.
ORDER AND RECOMMENDATION OF DISMISSAL
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Doyle Anthony Norwood, a prisoner in Lee State Prison in Leesburg, Georgia, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Compl., ECF No. 1. Plaintiff has also moved for leave to proceed in forma pauperis and for appointment of counsel. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2; Mot. to Appoint Counsel, ECF No. 3. Additionally, Plaintiff has filed a request for a jury trial and an objection to the order referring this case to the undersigned United States Magistrate Judge, Mot. for Jury Trial and Obj., ECF No. 6, and a motion seeking a continuance to get his evidence together and again requesting the appointment of counsel. Mot. for Continuance, ECF No. 8.
As discussed below, it is RECOMMENDED that Plaintiff's objection to the referral of this case be OVERRULED. Additionally, Plaintiff's motion to proceed in forma pauperis is GRANTED, and his motion to appoint counsel is DENIED. Thus, Plaintiff's complaint is ripe for preliminary review. On preliminary review of Plaintiff's complaint, it is now RECOMMENDED that the complaint be DISMISSED WITHOUT PREJUDICE for the reasons set forth below. It is also RECOMMENDED that his request for a continuance be DENIED and his demand for a jury trial be DENIED AS MOOT.
OBJECTION TO REFERRAL
At the outset, it is noted that Plaintiff has objected to the referral of this case to the undersigned United States Magistrate Judge for all pretrial matters except dispositive motions. Plaintiff asserts that he needs the case to go before a jury so that all of the evidence in the case will be reviewed and that a recommendation by a magistrate judge will not bring out the true facts of the case. Mot. for Jury Trial and Obj., ECF No. 6. The referral to the undersigned is appropriate under 28 U.S.C. § 636(b)(1) and Local Rule 72. To the extent that Plaintiff has objections to any of the undersigned's recommendations, he may file those objections for review by the District Judge. Accordingly, it is RECOMMENDED that Plaintiff's objection to the referral be OVERRULED.
MOTION TO PROCEED IN FORMA PAUPERIS
Any court of the United States may authorize the commencement of a civil action, without prepayment of the required filing fee (in forma pauperis), if the plaintiff shows that he is indigent and financially unable to pay the court's filing fee. See 28 U.S.C. § 1915(a). A prisoner wishing to proceed under § 1915 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.” 28 U.S.C. § 1915(b).
Pursuant to this provision, Plaintiff has moved for leave to proceed without prepayment of the $350.00 filing fee, and his submissions show that he is currently unable to prepay any portion of the filing fee. Plaintiff's motion to proceed in forma pauperis is therefore GRANTED. Plaintiff is, however, still obligated to eventually pay the full balance of the filing fee, in installments, as set forth in § 1915(b) and explained below. 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 Plaintiff's complaint is dismissed prior to service.
For this reason, the CLERK is DIRECTED to 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, as explained below.
I. Directions to Plaintiff's Custodian
Because Plaintiff has now been granted leave to proceed in forma pauperis in the above-captioned case, 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 trust account at said institution until the $350.00 filing fee has been paid in full. The funds shall be collected and withheld by the prison account custodian who shall, on a monthly basis, forward the amount collected as payment towards the filing fee, provided the amount in the prisoner's account exceeds $10.00. The custodian's collection of payments shall continue until the entire fee has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.
II. Plaintiff's Obligations Upon Release
An individual's release from prison does not excuse his prior noncompliance with the provisions of the PLRA. Thus, 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. The Court hereby authorizes collection from Plaintiff of any balance due on these payments by any means permitted by law in the event Plaintiff is released from custody and fails to remit such payments. Plaintiff's Complaint may be dismissed if he is able to make payments but fails to do so or if he otherwise fails to comply with the provisions of the PLRA.
MOTION TO APPOINT COUNSEL
Plaintiff has also filed a motion for the appointment of counsel. In the motion, Plaintiff asserts that he cannot write because of surgery that he has had and that he is a layman who does not know the law. Mot. to Appoint Counsel, ECF No. 3.
“Appointment of counsel in a civil case is not a constitutional right.” Wahl v McIver, 773 F.2d 1169, 1174 (11th Cir. 1986). To the contrary, appointment of counsel is a privilege that is justified only by exceptional circumstances. Id. In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claim and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989).
The federal in forma pauperis statute authorizes courts to “request an attorney to represent any person unable to afford counsel, ” 28 U.S.C. § 1915(e)(1). The statute does not, however, provide any funding to pay attorneys for their representation or authorize courts to compel attorneys to represent an indigent party in a civil case. See Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296 (1989).
In accordance with Holt, and upon a review of the record in this case, the Court notes that Plaintiff has been able to file a complaint, which sets forth the essential factual allegations underlying his claims, and that the applicable legal doctrines are readily apparent. Accordingly, Plaintiff's motion for appointment of counsel is DENIED. Should it later become apparent that legal assistance is required in order to avoid prejudice to Plaintiff's rights, the Court, on its own motion , will consider assisting him in securing legal counsel at that time. Consequently, there is no need for Plaintiff to file additional requests for counsel.
PRELIMINARY REVIEW OF PLAINTIFF'S COMPLAINT
I. 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).
II. Factual Allegations
According to Plaintiff's complaint, inmate Elton Johnson was a “problematic inmate” who used drugs and had been in segregation a few times for causing inmates and officers problems. Compl. 5, ECF No. 1. After Johnson had caused problems with a previous cellmate, the administration moved him to Plaintiff's cell, rather than moving him out of the dorm, even though the administration knew about Johnson's problematic nature. Id. On April 27, 2021, Johnson jumped on Plaintiff, pounded Plaintiff's head on the floor, and broke Plaintiff's left hand. Id. Officer Deandra Anderson saw the altercation take place. Id.
Plaintiff filed this complaint asserting that he is a fifty-five-year-old man who was not protected by the Georgia Department of Corrections or the administration of Lee State Prison. Id. at 6. Plaintiff contends that Johnson could have killed Plaintiff and that no one was on the floor to protect Plaintiff, which allowed Johnson to break Plaintiff's hand. Id. As defendants, Plaintiff names Warden Allen Dills, Deputy Warden Brown, and Chief Captain of Security Roberts. Id. at 4.
III. Plaintiff's Claims
A. Deliberate Indifference to Safety
Plaintiff's allegations relate to a potential claim for deliberate indifference to safety. In order to state a claim for deliberate indifference to safety, a prisoner must allege facts to show the existence of a prison condition that is extreme and poses an unreasonable risk 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. In this regard, “there must be much more than mere awareness of [an inmate's] generally problematic nature.” Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003). Instead, “the prison official must be aware of specific facts from which an inference could be drawn that a substantial risk of serious harm exists-and the prison official must also ‘draw that inference.'” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Plaintiff also refers in his complaint to libel and negligence. Compl. 6, ECF No. 1. Libel is a state law claim alleging that the defendant published a defamatory statement about the plaintiff. See Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002) (discussing O.C.G.A. § 51-5-1(a)). Nothing in Plaintiff's complaint implicates a potential libel claim. While Plaintiff's allegations could implicate a possible negligence claim, negligence is also a state law claim. As discussed herein, it is recommended that Plaintiff's constitutional claim for deliberate indifference to safety be dismissed. If this recommendation is accepted, there will be no basis for the court to exercise supplemental jurisdiction over any state law claims. Thus, it is not appropriate to address the negligence claim at this time.
Here, Plaintiff's allegations show a risk of harm to Plaintiff insofar as Johnson attacked and injured Plaintiff. The question, however, is whether there are any allegations to show that any of the named defendants was aware of the risk of harm and disregarded that risk. To that end, Plaintiff asserts that Johnson was a problematic inmate, that Johnson used drugs, and that Johnson was known to have caused problems in the past. Although Plaintiff may be implying that Johnson had been violent in the past, Plaintiff does not actually make any allegations that Johnson had committed any specific acts of violence in the past or that Johnson had a general history of violence. Moreover, Plaintiff does not allege that Johnson had made any threats against Plaintiff or that there was otherwise any reason to believe that Johnson posed a substantial risk of harm to Plaintiff.
Even if Plaintiff's allegations had shown that someone should have known that Johnson posed a risk of harm to Plaintiff, he does not include allegations demonstrating that any of the named defendants was actually aware of this risk of harm. In this regard, Plaintiff asserts that the “administration” housed Johnson with Plaintiff, but he makes no specific allegations with regard to any of the named defendants. “[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) (internal quotation marks and citations omitted). Here, Plaintiff has not shown that any of these named defendants was deliberately indifferent to his safety, and thus, he has not stated a claim upon which relief may be granted.
IV. Motion for Continuance
In his motion for a continuance, Plaintiff asserts that he needs time to get evidence together in support of his claim. Mot. for Continuance, ECF No. 8. In particular, Plaintiff asserts that he is attempting to get his medical files so that he can demonstrate the extent of his injuries. Id. For the reasons set forth above, Plaintiff's allegations do not state a claim for relief, and evidence relating to the extent of Plaintiff's injury would not change that analysis. Accordingly, it is RECOMMENDED that Plaintiff's motion for a continuance be DENIED.
V. Conclusion
Because the complaint does not state a claim upon which relief may be granted, it is RECOMMENDED that Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE, as discussed above. If this recommendation is accepted, it is also RECOMMENDED that Plaintiff's motion for a jury trial be DENIED AS MOOT.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff may serve and file written objections to this recommendation with the United States District Judge to whom this case is assigned within FOURTEEN (14) DAYS of his being served with a copy of this Order. Plaintiff may seek an extension of time in which to file written objections or amendments, 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.
SO ORDERED and RECOMMENDED.