VANNESS v. MUSCOGEE COUNTY JAIL et al, No. 4:2023cv00129 - Document 8 (M.D. Ga. 2023)
Court Description: ORDER granting 3 MOTION for Leave to Proceed in forma pauperis and Directing Service. REPORT AND RECOMMENDATION 1 Complaint and 7 filed by KEVIS VANNESS. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 10/4/2023. (mlb)
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VANNESS v. MUSCOGEE COUNTY JAIL et al Doc. 8 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION KEVIS VAN NESS, : : Plaintiff, : VS. : : MUSCOGEE COUNTY JAIL, et al., : : Defendants. : ________________________________ : NO. 4:23-CV-129-CDL-MSH ORDER In accordance with the Court’s previous orders and instructions, pro se Plaintiff Kevis Van Ness, an inmate in the Muscogee County Jail in Columbus, Georgia, has filed a prison trust fund account certification form signed by prison officials (ECF No. 5) and an amendment or supplement to his Complaint (ECF No. 7). Having reviewed these submissions, Plaintiff’s motion to proceed in forma pauperis (ECF No. 3) is GRANTED, and his claims that Defendant Howard was deliberately indifferent to his safety shall proceed for further factual development. It is RECOMMENDED, however, that Plaintiff’s claims against the Muscogee County Jail and the Muscogee County Sheriff’s Office be DISMISSED without prejudice. MOTION TO PROCEED IN FORMA PAUPERIS Plaintiff first seeks leave to proceed without prepayment of the filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). Plaintiff’s submissions demonstrate that he is presently unable to pay the cost of commencing this action. His application to proceed in forma pauperis (ECF No. 3) is therefore GRANTED. Dockets.Justia.com Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 2 of 12 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 2 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 3 of 12 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 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. § 3 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 4 of 12 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. 4 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 5 of 12 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 Complaint arises from an incident in the Muscogee County Jail where he was attacked and robbed by four other inmates “because of [his] sexual preference” and after he “notified prison officials on 4 separate occasions about [his] safety and nothing was done.” Compl. 5, ECF No. 1. Although it is somewhat unclear from the pleadings, it appears Plaintiff first complained to prison officials that he was being harassed by another inmate on May 15, 2023. Pl.’s Resp. 1, ECF No. 7. Plaintiff also asked his family to call the jail and “let them know [he was] having problems and [he] fear[ed] for his safety.” Id. Plaintiff contends prison officials relocated him “at that time . . . and that was when [Plaintiff] met Lt. Howard,” whom Plaintiff appears to name as a Defendant in his response to the Court’s order requiring additional information about his claims. Id. Plaintiff states that Defendant Howard “placed [Plaintiff] in the housing unit where 5 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 6 of 12 the incident took place after hearing slurs from the inmates who occupied the unit.” Pl.’s Resp. 1, ECF No. 7. More specifically, Plaintiff claims Defendant Howard heard other inmates call Plaintiff a “sissy” who “came from the sissy dorm” and told Defendant Howard, “Don’t put him in here.” Id. Plaintiff also states he notified prison officials about his continuing concerns about his safety on May 23, May 24, June 10, and June 21, 2023, although it is unclear whom Plaintiff notified. Id. at 4. Plaintiff was attacked on June 21, 2023, and he suffered a broken nose and scarring. Id. Plaintiff contends Defendants’ failure to protect him from being attacked violated his constitutional rights, and as a result he seeks monetary damages and to have his “charges dismissed or thrown out.” Compl. 6, ECF No. 1. III. Plaintiff’s Claims It is unclear whether Plaintiff intends to pursue his claims against the Muscogee County Jail and the Muscogee County Sheriff’s Office. As the Court previously explained to Plaintiff, county jails and county sheriff’s offices are not legal entities subject to suit or liability under 42 U.S.C. § 1983. See Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992); Brannon v. Thomas Cnty. Jail, 280 F. App’x 930, 934 n.1 (11th Cir. 2008); Bunyon v. Burke County, 285 F. Supp. 2d 1310, 1328 (S.D. Ga. 2003). To the extent Plaintiff seeks to raise a § 1983 claim against either of these entities, those claims are therefore subject to dismissal. It appears more likely that Plaintiff instead intends to pursue his claims against Lieutenant Howard. Plaintiff’s allegations give rise to a claim that Defendant Howard 6 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 7 of 12 was deliberately indifferent to his safety in violation of the Eighth Amendment to the United States Constitution. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994). A prisoner asserting an Eighth Amendment failure-to-protect claim must allege (1) a substantial risk of serious harm; (2) the prison officials’ deliberate indifference to that risk; and (3) causation. Goodman v. Kimbrough, 718 F.3d 1325, 1331 (11th Cir. 2013). To establish deliberate indifference in this context, a prisoner must show that prison officials subjectively knew of the substantial risk of serious harm and that the prison officials knowingly or recklessly disregarded that risk. Id. at 1332. The subjective component of deliberate indifference requires a prisoner to allege facts showing that a prison official had “‘more than a generalized awareness of risk’” to the prisoner. Marbury v. Warden, 936 F.3d 1227, 1234 (11th Cir. 2019) (quoting Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1101-02 (11th Cir. 2014)). The inmate can do this by pleading facts showing “that he was in an environment so beset by violence that confinement, by its nature, threatened him with the substantial risk of serious harm” or by providing prison officials with details about a specific threat sufficient “to enable them to conclude that it presents a ‘strong likelihood’ of injury, not a ‘mere possibility.’” Id. at 1235-36 (quoting Brooks v. Warden, 800 F.3d 1295, 1301 (11th Cir. 2015)). The objective prong requires the prisoner to allege facts establishing that the prison official objectively “responded to the known risk in an unreasonable manner, in that he or she knew of ways to reduce the harm but knowingly or recklessly declined to act.” Id. (internal quotation marks omitted). 7 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 8 of 12 Construing Plaintiff’s allegations liberally and taking them as true, as the Court must at this early stage, Plaintiff has alleged that Defendant Howard specifically knew Plaintiff had been harassed because he was gay but relocated Plaintiff to a dorm that he knew was hostile to gay individuals. In addition, Plaintiff alleged that he complained to “prison officials” multiple times about his safety prior to being assaulted. Although the facts concerning Plaintiff’s claim are relatively sparse, the Court cannot say that this claim is entirely frivolous at this early stage. Plaintiff’s Eighth Amendment claim against Defendant Howard shall therefore proceed for further factual development.1 IV. Conclusion As discussed herein, Plaintiff’s motion to proceed in forma pauperis (ECF No. 3) is GRANTED, and Plaintiff’s claims that Defendant Lieutenant Howard was deliberately indifferent to his safety shall proceed for further factual development. It is RECOMMENDED, however, that Plaintiff’s remaining claims be DISMISSED without prejudice. OBJECTIONS Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections 1 The Court notes that Plaintiff cannot obtain a dismissal of pending charges or speedier release through a § 1983 action. See Preiser v. Rodriguez, 411 U.S. 475, 487, 489 (1973). “[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release[.]” Heck v. Humphrey, 512 U.S. 477, 481 (1994). Thus, to the extent Plaintiff seeks such relief as a remedy for the constitutional violations he alleges, it is not available in a § 1983 case. 8 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 9 of 12 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 Plaintiff has made colorable constitutional violation claims against Defendant Lieutenant Howard, it is accordingly ORDERED that service be made on Defendant 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. Defendant is 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 9 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 10 of 12 possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. Defendant is 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 Defendant shall not commence discovery until such time as an answer or dispositive 10 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 11 of 12 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 Defendant (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 Defendant beginning on the date of filing of 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/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 11 Case 4:23-cv-00129-CDL-MSH Document 8 Filed 10/04/23 Page 12 of 12 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 4th day of October, 2023. /s/ Stephen Hyles UNITED STATES MAGISTRATE JUDGE 12
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