WYNN v. Ricks et al, No. 4:2012cv00044 - Document 5 (M.D. Ga. 2012)
Court Description: ORDER GRANTING 2 MOTION for Leave to Proceed in forma pauperis filed by DANIEL ASHLEY WYNN; ORDER Directing Service; and REPORT AND RECOMMENDATION re 1 Complaint filed by DANIEL ASHLEY WYNN. Ordered by US Mag Judge Stephen Hyles on 2/28/12. (lws)
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WYNN v. Ricks et al Doc. 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION DANIEL ASHLEY WYNN, : : Plaintiff : : VS. : : OFFICER RICKS and RUTLAGE : STATE PRISON, : : Defendants : _________________________________: NO. 4:12CV-044 -CDL - MSH ORDER Plaintiff Daniel Ashley Wynn, a prisoner at the Central State Prison in Macon, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. ' 1983. Plaintiff also seeks leave to proceed without prepayment of the $350.00 filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). Based on Plaintiff's submissions, the Court finds that Plaintiff is presently unable to prepay the filing fee. The Court thus GRANTS Plaintiff's Motion to Proceed in forma pauperis and waives the initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). Plaintiff is still obligated to eventually pay the full filing fee, as is directed later in this Order and Recommendation. The Clerk of Court is thus DIRECTED to send a copy of this Order to the business manager of Central State Prison. The Court has now also reviewed Plaintiff’s Complaint as required by 29 U.S.C. §1915A(a) and finds that Plaintiff’s claims against Defendant “Officer Ricks” should be 1 Dockets.Justia.com allowed to go forward. It is RECOMMENDED, however, that Defendant Rutledge State Prison be DISMISSED from this action pursuant to 28 U.S.C. § 1915A(b)(1). STANDARD OF REVIEW Because Plaintiff is a prisoner “seeking redress from a governmental entity or [an] officer or employee of a governmental entity,” this Court is required to conduct a preliminary screening of his Complaint. See 28 U.S.C. ' 1915A(a). In so doing, the district 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, like the one in this case, are also “held to a less stringent standard than pleadings drafted by attorneys” and must be “liberally construed.@ Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Nonetheless, a district court may still dismiss a prisoner complaint after the initial review if it finds that the complaint (1) “is frivolous, malicious, or fails to state a claim upon which relief may be granted@; or (2) Aseeks monetary relief from a defendant who is immune from such relief.@ 28 U.S.C. §1915A(b); see also 28 U.S.C. §1915(2)(B). A claim is frivolous when it appears from the face of the complaint that the factual allegations are Aclearly baseless@ or that the legal theories are Aindisputably meritless.@ Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint is thus properly dismissed by the district court sua sponte if it is found to be “without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). A complaint fails to state a claim when it does not include Aenough factual matter (taken as true)@ to Agive the defendant fair notice of what the . . . claim is and the grounds 2 upon which it rests[.]@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The “factual allegations must be enough to raise a right to relief above the speculative level.@ Id. In other words, the complaint must contain something more than “a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. A[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 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 County, 50 F.3d 1579, 1581 (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); see also 28 U.S.C. § 1915A(b). STATEMENT AND ANALYSIS OF CLAIMS The present action arises from alleged sexually offensive conduct by a prison guard. Plaintiff’s Complaint alleges that Defendant “Officer Ricks” has made sexual comments and gestures on multiple occasions and has started “watching” Plaintiff while he takes his showers. Plaintiff further alleges that Officer Ricks exposed himself to Plaintiff on at least one occasion and requested that Plaintiff perform a sex act. The Complaint does not allege any physical contact or sexual assault. Generally, the Constitution does not protect inmates against “[f]ear or emotional 3 injury which results solely from verbal harassment or idle threats.” Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991); Hernandez v. Fla. Dep't of Corr., 281 F. App'x 862, 866 (11th Cir. 2008) (verbal abuse alone is insufficient to state a constitutional claim); accord, McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (“mere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations.”). The Eighth Amendment, however, does prohibit the “wanton infliction of psychological pain,” regardless of physical injury, if such actions are serious enough to garner the Constitution's attention. Thus, while mere verbal harassment does not generally offend the Eighth Amendment, severe, pervasive, or physically threatening sexual harassment by a prison guard may rise to the level of a constitutional violation. See, e.g., Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (sexual harassment of inmate by corrections officer can never serve a legitimate penological purpose); but see, Morales v. Mackalm, 278 F.3d 126, 132 (2nd Cir. 2002) (allegations that guard asked prisoner to have sex with her and to masturbate in front of her did not rise to level of a constitutional violation) abrogated on other grounds by Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Barney v. Pulsipher, 143 F.3d 1299, 1311 n. 11 (10th Cir. 1998) (noting that sexual harassment and intimidation was not sufficient to state Eighth Amendment claim). It is too early, in this case, to determine whether Plaintiff’s allegations of sexual harassment are sufficient to support a constitutional claim. The Court thus ORDERS that service be made on Defendant Officer Ricks and that he file an Answer, or such other response as may be appropriate under Rule 12 of the Federal Rules of Civil Procedure, 28 4 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendant is also 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). Defendant Rutledge State Prison, however, is not an entity which may be sued under § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). It is accordingly RECOMMENDED that Defendant Rutledge State Prison be DISMISSED from this action pursuant to 28 U.S.C. § 1915A(b)(1). Pursuant to 28 U.S.C. ' 636(b)(1), Plaintiff may serve and file written objections to this recommendation with the district judge to whom this case is assigned within fourteen (14) days after being served a copy of this Order. DUTY TO ADVISE OF ADDRESS CHANGE During the pendency of this action, all parties shall at all times 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 any change of address may result in the dismissal of a party’s pleadings filed herein. DUTY TO PROSECUTE ACTION Plaintiff is advised that she must diligently prosecute her 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 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 5 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 (i.e., by U.S. Mail, by personal service, etc.). DISCOVERY Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of Defendants from whom discovery is sought by Plaintiff. 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. Plaintiff’s deposition may be taken at any time during the time period 6 hereinafter set out, provided that prior arrangements are made with her custodian. Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal of her lawsuit under Rule 37 of the Federal Rules of Civil Procedure. It is hereby ORDERED that discovery (including depositions and interrogatories) shall be completed within 90 days of the date of filing of an answer or dispositive motion by 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 Defendants and granted by the Court. This 90-day period shall run separately as to each Defendant beginning on the date of filing of each Defendant’s 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 or served upon him 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 is required to 7 respond to any request which exceed these limitations. REQUESTS FOR DISMISSAL AND/OR JUDGMENT Dismissal of this action or requests for judgment will not be considered by the Court in the absence of a separate 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 thirty (30) days after the close of discovery unless otherwise directed by the Court. DIRECTIONS TO CUSTODIAN OF PLAINTIFF Following the payment of the required initial partial filing fee or the waiving of the payment of same, the Warden of the institution wherein Plaintiff is incarcerated, or the Sheriff of any county wherein she 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. In accordance with provisions of the Prison Litigation Reform Act, 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 further ORDERED and DIRECTED 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 her prior to the collection of the full filing fee. 8 PLAINTIFF’S OBLIGATION TO PAY FILING FEE Pursuant to provisions of the Prison Litigation Reform Act, in the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, she shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; Plaintiff shall continue to remit monthly payments as required by the Prison Litigation Reform Act. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit payments. In addition, Plaintiff’s Complaint is subject to dismissal if she has the ability to make monthly payments and fails to do so. SO ORDERED, this 28th day of February, 2012. S/STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE 9
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