KENNEDY v. THOMPSON et al, No. 5:2023cv00125 - Document 6 (M.D. Ga. 2023)
Court Description: ORDER Granting 4 MOTION for Leave to Proceed in forma pauperis filed by REGINALD KENNEDY ; REPORT AND RECOMMENDATION 5 Amended Complaint/Petition filed by REGINALD KENN EDY, Plaintiffs claims as to Warden Aimee Smith be DISMISSED WITHOUT PREJUDICE for failure to state a claim. 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. Ordered by US MAGISTRATE JUDGE CHARLES H WEIGLE on 6/22/2023. (sst)
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KENNEDY v. THOMPSON et al Doc. 6 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION REGINALD KENNEDY, : : Plaintiff, : : V. : : LIEUTENANT THOMPSON, et al., : : Defendants. : : _________________________________: NO. 5:23-cv-00125-MTT-CHW ORDER Plaintiff Reginald Kennedy, a prisoner in the Coffee Correctional Facility in Nicholls, Georgia, has filed a 42 U.S.C. § 1983 civil rights complaint. Compl., ECF No. 1; Am. Compl., ECF No. 5. Plaintiff has also filed a motion for leave to proceed in this action in forma pauperis. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 4. Plaintiff’s motion to proceed in forma pauperis is GRANTED, and his complaint is now ripe for preliminary review. On that review, Plaintiff will be allowed to proceed for further factual development on his deliberate indifference to safety claim against Defendant Lieutenant Thompson, but it is RECOMMENDED that Plaintiff’s claims as to Warden Aimee Smith be DISMISSED WITHOUT PREJUDICE for failure to state a claim. MOTION FOR LEAVE 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. Dockets.Justia.com Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 2 of 11 § 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. See Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2. 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. A. 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 2 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 3 of 11 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. B. 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 Because he has been granted leave to proceed in forma pauperis, Plaintiff’s complaint is now ripe for 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 3 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 4 of 11 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, pro se claims are “liberally construed.” 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. 4 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 5 of 11 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). I. Plaintiff’s Complaint In his complaint, Plaintiff asserts that, on September 7, 2021, an inmate was stabbed in the ear by another inmate during breakfast. Am. Compl. 5, ECF No. 5. Defendant Lieutenant Thompson took the victim to medical, but he did not restrain the inmate who had the knife, take the knife away, or take any other safety precautions to prevent that inmate from harming anyone else. Id. Later that day, Plaintiff was at pill call when he was stabbed in the head by the same inmate. Id. Lieutenant Thompson was in sight, and Plaintiff beat on the wall to get his attention, but Thompson just looked at Plaintiff, saw that he was bleeding, and walked away. Id. Plaintiff then walked around looking for another officer to help him. Id. While he was doing so, Plaintiff was again attacked and beaten by the same inmate. Id. As the inmate was trying to stab Plaintiff again, two officers finally noticed and stopped the attack. Id. Plaintiff was then taken to the hospital for treatment. Id. Following the attack, Plaintiff continues to suffer from headaches and severe anxiety. Id. Plaintiff filed 5 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 6 of 11 this complaint, naming Lieutenant Thompson and Warden Aimee Smith as defendants. Id. at 4. II. Plaintiff’s Claims Plaintiff’s allegations raise potential claims for deliberate indifference to safety. To state an Eighth Amendment claim for exposure to unsafe conditions, 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. If the defendant took action that reasonably responded to the risk, the defendant will not be held liable, even if the harm was not averted. Id. at 1290. A. Lieutenant Thompson As to Lieutenant Thompson, Plaintiff asserts that Thompson witnessed an inmate attack another inmate by stabbing him but did nothing to restrain the attacking inmate, take away his weapon, or take any other precautions. These allegations suggest that Thompson knew about a potentially dangerous situation with regard to this inmate but disregarded the risk of harm. As a result, Plaintiff was stabbed by the inmate that same day. Thompson saw Plaintiff bleeding from his wound but walked away, leaving Plaintiff in danger again. These allegations are sufficient to allow Plaintiff to proceed for further factual development on his claim that Thompson was deliberately indifferent to Plaintiff’s safety. 6 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 7 of 11 B. Warden Aimee Smith With regard to Warden Aimee Smith, Plaintiff does not allege any facts suggesting that she was present for the attacks on the other inmate or on Plaintiff or that she had any knowledge that such attacks may take place. Thus, it appears that Plaintiff is attempting to state a claim against Warden Smith based on her supervisory role. To state a claim against a supervisory official, a prisoner must allege facts showing either that the supervisor personally participated in the alleged constitutional violation or that there is a causal connection between the actions of the supervising official and the alleged constitutional deprivation. H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1086-87 (11th Cir. 1986). This may be done by alleging facts showing that the official either “(1) instituted a custom or policy which resulted in a violation of the plaintiff’s constitutional rights; (2) directed his subordinates to act unlawfully; or (3) failed to stop his subordinates from acting unlawfully when he knew they would.” Gross v. White, 340 F. App’x 527, 531 (11th Cir. 2009) (per curiam) (citing Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007)). Plaintiff has not alleged facts showing Smith’s personal participation in the alleged violation and has not alleged any facts demonstrating a causal connection between Smith and the violation. Because Plaintiff has not stated a claim against Warden Smith, it is RECOMMENDED that this claim be DISMISSED WITHOUT PREJUDICE for failure to state a claim. 7 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 8 of 11 IV. Conclusion For the reasons discussed herein, Plaintiff will be allowed to proceed on a deliberate indifference to safety claim against Defendant Lieutenant Thompson. It is RECOMMENDED that Plaintiff’s claims be DISMISSED WITHOUT PREJUDICE as to Warden Aimee Smith. OBJECTIONS Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this order and recommendation with the United States District Judge to whom this case is assigned WITHIN FOURTEEN (14) DAYS after being served with a copy of this order and recommendation. 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. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. 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 For those reasons discussed above, it is hereby ORDERED that service be made on DEFENDANT LIEUTENANT THOMPSON, and that he file an Answer, or other response as appropriate under the Federal Rules, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendant is also reminded of the duty to avoid unnecessary service expenses, and the possible imposition of expenses for failure to waive service. 8 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 9 of 11 DUTY TO ADVISE OF ADDRESS CHANGE During 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. DUTY TO PROSECUTE ACTION Plaintiff must diligently prosecute his Complaint or face the possibility that it will be dismissed under Rule 41(b) for failure to prosecute. Defendant is advised that he is expected to diligently defend all allegations made against him 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 9 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 10 of 11 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 hereinafter set out, provided that 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 Fed. R. Civ. P. 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 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. 10 Case 5:23-cv-00125-MTT-CHW Document 6 Filed 06/22/23 Page 11 of 11 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 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 accompanied by a brief/memorandum of law citing supporting authorities. Dispositive motions should be filed at the earliest time possible, but no later than one hundred-twenty (120) days from when the discovery period begins. SO ORDERED and RECOMMENDED, this 22nd day of June, 2023. s/ Charles H. Weigle Charles H. Weigle United States Magistrate Judge 11
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