Opinion
4:22-CV-00088-CDL-MSH
08-15-2022
DENNIS DEMETRIUS SCOTT, Plaintiff, v. SHERMAN THOMAS, et al., Defendants.
ORDER AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
In accordance with the Court's previous orders and instructions, pro se Plaintiff Dennis Demetrius Scott has filed a Recast Complaint (ECF No. 8) and a motion for leave to proceed in forma pauperis that contains information about his prison trust fund account (ECF No. 9). Plaintiff has also responded to the Court's show cause order explaining that his late responses have been due to delays in the prison mail system, and he seeks additional time to respond to the Court's orders and instructions (ECF No. 10). Because Plaintiff has now responded to each of the Court's previous orders, his motion for an extension of time (ECF No. 10) is DENIED as moot. If Plaintiff requires additional time to comply with the Court's future orders and instructions, he should file a motion seeking such relief at that time.
The Court has reviewed Plaintiff's submissions, and for the following reasons, Plaintiff's motions for leave to proceed in forma pauperis (ECF Nos. 4, 9) are GRANTED, and his excessive force and medical treatment claims against Defendants Jones, Veals, Calvin, Stewart, Syck, and Harm shall proceed for further factual development. It is RECOMMENDED, however, that his remaining claims be DISMISSED without prejudice.
MOTIONS TO PROCEED IN FORMA PAUPERIS
Plaintiff seeks leave to proceed without prepayment of the filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). Although Plaintiff has not provided the Court with a certified copy of his prison trust fund account information, as previously ordered, his submissions indicate that this failure is not the result of his own action or inaction. Because it appears from the information Plaintiff was able to submit that he is unable to pay the cost of commencing this action, his applications to proceed in forma pauperis (ECF Nos. 4, 9) are GRANTED.
However, even if a prisoner is allowed to proceed in forma pauperis, he must nevertheless pay the full amount of the $350.00 filing fee. 28 U.S.C. § 1915(b)(1). If the prisoner has sufficient assets, he must pay the filing fee in a lump sum. If sufficient assets are not in the account, the court must assess an initial partial filing fee based on the assets available. Despite this requirement, a prisoner may not be prohibited from bringing a civil action because he has no assets and no means by which to pay the initial partial filing fee. 28 U.S.C. § 1915(b)(4). In the event the prisoner has no assets, payment of the partial filing fee prior to filing will be waived.
Plaintiff's submissions indicate that he is unable to pay the initial partial filing fee. Accordingly, it is hereby ORDERED that his complaint be filed and that he be allowed to proceed without paying an initial partial filing fee.
I. Directions to Plaintiff's Custodian
Hereafter, Plaintiff will be required to make monthly payments of 20% of the deposits made to his prisoner account during the preceding month toward the full filing fee. The clerk of court is DIRECTED to send a copy of this Order to Plaintiff's current place of incarceration. It is 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, shall each month cause to be remitted to the Clerk of this Court twenty percent (20%) of the preceding month's income credited to Plaintiff's account at said institution until the $350.00 filing fee has been paid in full. 28 U.S.C. § 1915(b)(2). In accordance with provisions of the Prison Litigation Reform Act (“PLRA”), Plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is ORDERED that collection of monthly payments from Plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against 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.
PRELIMINARY REVIEW OF PLAINTIFF'S RECAST COMPLAINT
I. Standard of Review
The PLRA obligates the district courts 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). Screening is also required under 28 U.S.C. § 1915(e) when the plaintiff is proceeding IFP. Both statutes apply in this case, and the standard of review is the same. 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.'” Hughes, 350 F.3d at 1160 (citation 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) (citation omitted). The Court may dismiss claims that are based on “‘indisputably meritless legal'” theories and “‘claims whose factual contentions are clearly baseless.'” Id. (citation 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 (citation omitted). 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 previous detention at the Muscogee County Jail (“MCJ”). According to the Recast Complaint, Defendant Calvin, a jail officer, woke Plaintiff during the early morning hours of January 3, 2022 to take Plaintiff to a medical appointment. Recast Compl. 5, ECF No. 8. Plaintiff states that he “tried to refuse treatment, but was forced to report to the medical wing.” Id. Upon his arrival in the medical wing, another officer permitted Plaintiff to refuse treatment, and Plaintiff attempted to return to his assigned area. Id. Upon doing so, however, two officers- Defendants Veals and Stewart-approached Plaintiff and told him to “‘grab the wall and cuff up.'” Id. When Plaintiff requested a supervisor, four additional officers-Defendants Jones, Harm, Syck, and Calvin-arrived at the scene. Id.
The Recast Complaint is the operative pleading in this case. See Schreane v. Middlebrookst 522 Fed.Appx. 845, 847 (11th Cir. 2013) (per curiam) (noting that generally, an amended complaint supersedes the original complaint unless the amended complaint specifically refers to or adopts the original complaint).
After Defendant Jones advised Plaintiff that he was being punished because he “took an attitude to the medical wing,” Plaintiff “turn[ed] around and place[d] both hands high above [his] head palms opened flat against the wall and spread [his] legs apart.” Recast Compl. 5, ECF No. 8. Plaintiff alleges that while he was in this position, Defendant Calvin began to handcuff him, and Defendant Veals “violently shoved” Plaintiff from behind. Id. Plaintiff also alleges he “state[d] clear and plain and loud for all the officers that [he was] not going to resist” and was “going to comply with all the commands and willfully allow [himself] to be handcuffed with no resistance.” Id. at 5-6. Despite this statement, Plaintiff contends Defendant Veals again shoved him into the wall “but with much more considerable force.” Id. at 6. Plaintiff braced himself in an effort to prevent himself from “being smashed face first into the wall” and turned around. Id. At that time, multiple officers began striking Plaintiff. Id. Plaintiff contends he was “not struggling” and “in a surrendering position” when Defendant Syck sprayed Plaintiff in the face with multiple bursts of pepper spray. Id. Plaintiff “loudly” announced his intent to surrender, but officers struck him multiple times in the face, handcuffed him backwards, and placed him in a “closet sized caged style shower on the isolation wing” for two to three hours without letting him decontaminate. Id. When Plaintiff requested medical treatment, his “request[s] were answered with taunting remarks.” Id. Plaintiff contends that Defendants' actions violated his constitutional rights, and he primarily seeks monetary damages as a result. Id. at 7.
III. Plaintiff's Claims
A. Excessive Force Claims against Defendants Jones, Veals, Calvin, Stewart, Syck, and Harm
Plaintiff's allegations that Defendants used excessive force against him as a pretrial detainee could give rise to Fourteenth Amendment claims. Piazza v. Jefferson Cnty., Ala., 923 F.3d 947, 951-52 (11th Cir. 2019). The Supreme Court has clarified that “a pretrial detainee raising a Fourteenth Amendment claim needn't prove an officer's subjective intent to harm but instead need only show that ‘the force purposely or knowingly used against him was objectively unreasonable.'” Id. at 952 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015)). “The objective-reasonableness determination must be made ‘from the perspective of a reasonable officer on the scene.'” Id. To determine whether the amount of force used was objectively reasonable, the Court must consider “the facts and circumstances of each particular case,” including “the relationship between the need for use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 397 (internal quotation marks and citation omitted).
In this case, Plaintiff alleges that officers used force against Plaintiff at times where Plaintiff was restrained or not resisting and that he suffered injuries including a “cut/gash” above his left eye that “swelled shut and ble[]d profusely.” Recast Compl. 6, ECF No. 8. Plaintiff also contends he was pepper-sprayed while he was “in a surrendering position” and was not permitted to decontaminate for several hours. Id. An officer's gratuitous use of force on a detainee who is not struggling, resisting, or posing any danger to the officer can constitute excessive force. See, e.g., Piazza, 923 F.3d at 953 (“[B]ecause force in the pretrial detainee context may be defensive or preventative-but never punitive-the continuing use of force is impermissible when a detainee is complying, has been forced to comply, or is clearly unable to comply.”). And “[a]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force can be held personally liable for his nonfeasance.” Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002). Plaintiff has alleged that Defendants Jones, Veals, Calvin, Stewart, Syck, and Harm either used excessive force against him or failed to take reasonable steps to protect Plaintiff while other officers used excessive force. Plaintiff's excessive force claims against Defendants Jones, Veals, Calvin, Stewart, Syck, and Harm therefore require further factual development.
B. Medical Treatment Claims against Defendants Jones, Veals, Calvin, Stewart, Syck, and Harm
Plaintiff next alleges that Defendants Jones, Veals, Calvin, Stewart, Syck, and Harm failed to provide him with adequate medical treatment for the injuries he suffered as a result of the January 3, 2022 incident. A prisoner who demonstrates that a prison official was deliberately indifferent to his serious medical needs can state a constitutional claim. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003); Goodman, 718 F.3d at 1331 n.1.“To show that a prison official acted with deliberate indifference to serious medical needs, a plaintiff must satisfy both an objective and a subjective inquiry.” Farrow, 320 F.3d at 1243. A plaintiff must first “set forth evidence of an objectively serious medical need” and must also “prove that the prison official acted with an attitude of ‘deliberate indifference' to that serious medical need.” Id. In other words, prison officials must both “know of and then disregard an excessive risk to the prisoner.” Dunn v. Martin, 178 Fed.Appx. 876, 877 (11th Cir. 2006) (per curiam). For purposes of this analysis, a “serious medical need” is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Farrow, 320 F.3d at 1243 (internal quotation marks omitted). A “serious medical need” may also exist when “a delay in treating the need worsens the condition.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009).
The standard for deliberate indifference in the context of a medical claim is the same whether the inmate is a pretrial detainee or convicted prisoner. Dang v. Sheriff, 871 F.3d 1272, 1279 n.2 (11th Cir. 2017); see also Swain v. Junior, 961 F.3d 1276, 1285 n.4 (11th Cir. 2020).
Plaintiff alleges he was pepper-sprayed multiple times in the face, his eye was swollen shut, and he had a bleeding cut above his eye. Recast Compl. 6, ECF No. 8. Plaintiff also states he was left without medical care for several hours, during which time suffered “severe pain,” “blood . . . profusely pouring from [his] eye,” and difficulty breathing due to the pepper spray. Id. Plaintiff further contends he requested medical attention from the officers, but they refused. Id. These allegations are sufficient to permit Plaintiff's claims that these Defendants failed to provide him adequate medical treatment to proceed for further factual development. See, e.g., Alsobrook v. Alvarado, 477 Fed.Appx. 710, 713 (11th Cir. 2012) (per curiam) (holding that “delayed treatment of a few hours for bleeding cuts, when there is no justifiable explanation for the delay, may equate to deliberate indifference.”).
C. Supervisory Liability Claims against Defendants Thomas and King
Plaintiff also alleges that Defendants Thomas and King-the deputy wardens of security and care and treatment, respectively-should be held liable for the conduct of their subordinates. Recast Compl. 6, ECF No. 8. It is well-settled in the Eleventh Circuit, however, that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability. See, e.g., Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). Rather, supervisors can only be held liable under § 1983 if they personally participated in unconstitutional conduct or if there is a causal connection between their actions and the alleged constitutional violation. See, e.g., Hendrix v. Tucker, 535 Fed.Appx. 803, 805 (11th Cir. 2013) (per curiam). A causal connection can be established if
(1) a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation and he fail[ed] to do so; (2) the supervisor's improper custom or policy le[d] to deliberate indifference to constitutional rights; or (3) facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.Id. “The standard by which a supervisor is held liable in her individual capacity for the actions of a subordinate is extremely rigorous.” Id. (internal quotation marks omitted).
In this case, Plaintiff simply alleges that Defendants Thomas and King “were well aware of this type of conduct from their officer[s] and even promote it.” Recast Compl. 6, ECF No. 8. But Plaintiff has not alleged any facts supporting this conclusory statement or otherwise suggesting the existence of a widespread history of abuse at the jail, that Defendants Thomas or King had a custom or policy that led to the alleged constitutional violations in this case, or that Defendants Thomas or King directed their subordinates to act unlawfully or knew they would do so and failed to stop them. Absent specific facts that could support his allegations of supervisory liability, Plaintiff cannot state an actionable claim. Ashcroft, 556 U.S. at 678. Plaintiff's supervisory liability claims against Defendants Thomas and King should therefore be dismissed.
CONCLUSION
As explained above, Plaintiff's motions for leave to proceed in forma pauperis (ECF Nos. 4, 9) are GRANTED, and his motion for an extension of time (ECF No. 10) is DENIED as moot. Plaintiff's excessive force and medical treatment claims against Defendants Jones, Veals, Calvin, Stewart, Syck, and Harm shall proceed for further factual development, but it is RECOMMENDED that his remaining claims be DISMISSED without prejudice.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable Clay D. Land, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. 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
Having found that certain of Plaintiff's allegations against Defendants Jones, Veals, Calvin, Stewart, Syck, and Harm require further factual development, it is accordingly ORDERED that service be made on 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, this 15th day of August, 2022.