Opinion
No. 5:19-cv-00035-TES-CHW
03-30-2020
THERIAN WIMBUSH, Plaintiff, v. GOVERNOR BRIAN KEMP, et al., Defendants.
ORDER
Plaintiff Therian Wimbush, a prisoner in Pulaski State Prison in Hawkinsville, Georgia, initially filed a motion for preliminary injunction, accompanied by a motion to proceed in forma pauperis. Mot. for Prelim. Inj., ECF No. 1. Mot. to Proceed In Forma Pauperis, ECF No. 2. Thereafter, Plaintiff was ordered to recast her claims in on the form for 42 U.S.C. § 1983 complaints. Order, ECF No. 7. After granting Plaintiff two extensions of time to file her recast complaint, Plaintiff was granted leave to proceed in forma pauperis, but it was recommended that a preliminary injunction be denied at that time. Order, ECF No. 12. Over Plaintiff's objections, the District Judge adopted that recommendation. Order, ECF No. 15.
Plaintiff subsequently filed her recast complaint. Recast Compl., ECF No. 16. On initial review of that complaint, however, it was recommended that Plaintiff's in forma pauperis status be rescinded and that Plaintiff's complaint be dismissed because she had at least three federal cases or appeals that had been dismissed as frivolous or malicious or for failure to state a claim, and she had not alleged facts suggesting that she was in imminent danger of serious physical injury. R. & R., ECF No. 19. Plaintiff objected to the recommendation and also paid the $350.00 filing fee for a civil rights complaint. Obj., ECF No. 24. In light of Plaintiff's payment of the filing fee, the District Judge adopted the recommendation that her in forma pauperis status be rescinded and remitted this matter back to this Magistrate Judge for a preliminary review of Plaintiff's complaint. Order, ECF No. 26. On review, it is now ORDERED that Plaintiff recast her complaint yet again, for the reasons discussed below.
I. Order to Recast
Plaintiff's recast complaint includes an eighteen-page statement of the claim, which raises issues ranging from the legality of Plaintiff's underlying conviction and misconduct by the clerk in processing her criminal appeal to claims relating to the conditions in the jail and retaliation against her for filing claims. Recast Compl. 9-26, ECF No. 16. Plaintiff has also filed an emergency motion for a preliminary injunction, in which she asserts that she has been transferred to a different prison where she cannot get food that complies with her religious diet. Em. Mot. for Prelim. Inj., ECF No. 27. With regard to the claims in her recast complaint and motion for preliminary injunction, Plaintiff has named thirty-one different defendants. See Recast Compl. 7-8, ECF No. 16.
As an initial matter, Rule 20 of the Federal Rules of Civil Procedure only permits a plaintiff to join claims against multiple defendants in one action if those claims arise "out of the same transaction, occurrence, or series of transactions or occurrences" and raise a "question of law or fact common to all defendants." Fed. R. Civ. P. 20(a)(2). A claim arises out of the same transaction or occurrence only "if there is a logical relationship between the claims." Construction Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334, 1337 n.6 (11th Cir. 1998). Here, it does not appear that there is a logical relationship between all of Plaintiff's claims, given the broad subject matter and number of defendants covered by the claims. In order to proceed, Plaintiff must clarify what claims she wants to pursue in this action and must demonstrate that these claims are related, as set forth below.
Moreover, "section 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). On one side, Plaintiff names several individuals as defendants without connecting those individuals to any specific claims with factual allegations. And on the other side, Plaintiff sets forth a number of claims for which she does not include any factual allegations connecting those claims to a particular defendant.
Thus, if she wants to proceed with this action, Plaintiff is ORDERED to recast her complaint. The recast complaint shall take the place of and supersede all complaints and other filings setting forth claims filed in this action. Thus, the Court will not look back to Plaintiff's previous filings to determine whether Plaintiff has stated a claim, and Plaintiff should take care to include all relevant factual allegations for any claims that she wishes to raise in this complaint.
Plaintiff is cautioned, however, that the opportunity to recast her complaint is not an invitation for her to include every imaginable claim that she may have against any state official. As mentioned above, in her recast complaint, Plaintiff named a large number of defendants. In recasting her complaint, Plaintiff will only be permitted to join claims against multiple defendants in one action if those claims arise "out of the same transaction, occurrence, or series of transactions or occurrences" and raise a "question of law or fact common to all defendants." Fed. R. Civ. P. 20(a)(2). If Plaintiff cannot demonstrate a "logical relationship" between her claims, the unrelated claims will be dismissed.
Moreover, in her recast complaint, Plaintiff shall clearly identify those individuals she wishes to include as named defendants in this case. It is also recommended that, when drafting her statement of claims, Plaintiff list numbered responses to the following questions (to the extent possible) along with the name of each defendant:
(1) What did this defendant do (or not do) to violate your rights? In other words: What was the extent of this defendant's authority or role in the unconstitutional conduct? Is he or she a supervisory official? Was the defendant personally involved in the constitutional violation? If not, did his or her actions otherwise cause the unconstitutional action? How do you know?Any defendants not connected to a cause of action will be subject to dismissal from this action. Likewise, any claims for which no defendant is identified will be subject to dismissal as well. Plaintiff should state her claims as simply as possible; she also need not use legal terminology or cite any specific statute or case law to state a claim. See Fed. R. Civ. P. 8. The Court will presume that Plaintiff's claims are raised under 42 U.S.C. § 1983 unless otherwise noted.
(2) When and where did each action occur (to the extent memory allows)?
(3) How were you injured as a result of this defendant's actions or decisions? If your injury is related to a change in the conditions of your confinement, please describe how those conditions differ from those in general population. If you have been physically injured, explain the extent of your injuries and any medical care requested or provided.
(4) How and when did this defendant learn of your injuries or otherwise become aware of a substantial risk that you could suffer a serious injury?
(5) What did this defendant do (or not do) in response to this knowledge?
(6) What relief you seek from this defendant?
II. Motion for Preliminary Injunction
As noted above, Plaintiff has also filed another motion for a preliminary injunction. Em. Mot. for Prelim. Inj., ECF No. 27. 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 F. App'x 912, 916-17 (11th Cir. 2010) (per curiam).
In her motion, Plaintiff asserts that she is at risk of starving because she has been transferred to Arrendale State Prison, which does not provide an option for kosher meals or for restricted vegan meals. Em. Mot. for Prelim. Inj., ECF No. 27. In this regard, Plaintiff states that Arrendale offers only a vegan option and that "none of the foods, essentially, meet the kosher diet restriction." Id.
At this stage, Plaintiff has not sufficiently established a likelihood of success on the merits to warrant the issuance of a preliminary injunction. In particular, Plaintiff makes only broad, general statements that the meals offered to her at Arrendale do not include sufficient options to meet her religious and nutritional needs. She has not identified any objective evidence to support this claim, and it is currently unclear if Plaintiff will be able to show that she has not been provided with sufficient meals. Thus, Plaintiff essentially seeks to have the Court order that she be provided relief without the benefit of a full picture. The Court cannot determine based solely on Plaintiff's conclusory and unsupported allegations that she has a substantial likelihood of success on the merits.
Moreover, Plaintiff has not identified a proper defendant on this claim, as the only defendant she names is the Georgia Department of Corrections, which is not a "person" within the meaning of § 1983. See Jackson v. Ga. Dep't of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994); see also Will v. Mich. Dep't of State Police, 491 U.S. 98, 71 (1989) (explaining that the state and its agencies are not "persons" for the purposes of § 1983 liability). Thus, the Georgia Department of Corrections is not a proper defendant.
Plaintiff has also failed to allege facts showing that his threatened injury outweighs any harm to defendants or that an injunction would not be adverse to the public interest. Again, Plaintiff is essentially asking the Court to order prison officials and administrators to change their food offerings based solely on her conclusory and unsupported allegations. Thus, it is RECOMMENDED that Plaintiff's motion for a preliminary injunction be DENIED without prejudice to Plaintiff's right to renew the motion with specific allegations, any evidence she has to support her claims, and a properly named defendant.
III. Conclusion
Thus, as set forth above, Plaintiff is ORDERED to recast her complaint within TWENTY-ONE (21) DAYS from the date of this order. Plaintiff's failure to fully and timely comply with this order may result in the dismissal of this action.
Additionally, it is RECOMMENDED that Plaintiff's motion for preliminary injunction (ECF No. 27) be DENIED without prejudice to her right to renew said motion as discussed herein.
Finally, the Clerk of Court is DIRECTED to forward a 42 U.S.C. § 1983 complaint form together with a copy of this Order (both showing the civil action number) to Plaintiff. There shall be no service of process in this case until further order of the Court.
SO ORDERED and RECOMMENDED, this 30th day of March, 2020.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge