Glover v. Simone et al, No. 1:2009cv03009 - Document 17 (N.D. Ga. 2010)

Court Description: ORDER AND OPINION GRANTING Plaintiff's 5 Motion for Leave to Proceed in forma pauperis as Freed Prisoner; GRANTING Defendant Simone's 11 Motion to Dismiss; DENYING AS MOOT Defendant Simone's 14 Motion to Stay Proceedings; DENYING AS MOOT Plaintiff's 4 Motion to Order Service of Summons and Complaint, and DENYING the Defendants' 16 Motion for Status Conference, without prejudice to renewal by the remaining Defendants. Defendants Krug, Simone, Flynn, and Kelker are DISMISSED. Plaintiff's claims against Defendants Miller, Davis, and Dr. John Doe are ALLOWED TO PROCEED. The case shall proceed on a 4 month discovery track. Signed by Judge Timothy C. Batten, Sr. on 6/14/2010. (alc)
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¢ ./411 IN THE UNITED STATES DISTRICT COU~T FOR THE NORTHERN DISTRicT OF GE A ATLANTA DIVISION .. .. .. .. JAMES R. GLOVER, Plaintiff, v. GREGORY L. SIMONE, DR. DOUGLAS E. KRUG, DR. JOHN DOE, OFFICER STEPHEN P. MILLER, CHIEF DAN FLYNN, LT. CLIFF KELKER, OFFICER S. DAVIS, Defendants. .. .. ... . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . (O'l'i'Q­ 11'<'0 70 CIVIL ACTION 1:09-CV-03009­ CIVIL RIGHTS 42:U.S.C. § 1983 ORDER AND OPINION i Plaintiff, James R. Glover, formerly a Georgia prisoner, has submitted this pro I se civil rights action [1], seeking relief under 42 0.S.C. § 1983. Glover formerly was granted leave to proceed in forma pauperis as a ~)fisoner [3], but he has since been , ! released from incarceration, and now seeks leav¢ to proceed in forma pauperis as a i non-prisoner [5]. It appears that each of the named Defendants has been served with , Glover's complaint. (See Docs. 6-10, 13.) This mktter is now before the Court for an initial screening and for consideration ofDefendapt Simone's Motion to Dismiss [11] and Motion to Stay Proceedings [14], and Defenuants Simone, Krug, Miller, Flynn, Kelker, and Davis's Motion for Scheduling Con~erence [16]. A072A (Rev.8/82) I. The Legal Framework A. 28 U.S.C. § 1915A Review Title 28 U.S.C. § 1915A requires a federal <yourt to conduct an initial screening ofa prisoner complaint seeking redress from a governmental entity, or from an officer or employee of such an entity, to determine wht1ther the complaint (1) is frivolous, malicious, or fails to state a claim upon which *elief may be granted, or (2) seeks , monetary relief from a defendant who is immurie from such relief. A complaint is frivolous when it "has little or no chance of succ¢ss" for example, when it appears "from the face of the complaint that the factual a]Iegations are clearly baseless[,] the legal theories are indisputably meritless," or "the defendant's absolute immunity justifies dismissal before service of process." C~rroll v. Gross, 984 F.2d 392, 393 (11 th Cir. 1993) (internal quotations omitted). A ~omplaint fails to state a claim when it does not include "enough factual matter (taken ~s true)" to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic I Corp. v. Twombly, 550 U.S. 544, 555-56 (2007~ (noting that "[f]actual allegations I , must be enough to raise a right to relief above th~ speculative level," and complaint "must contain something more ... than ... statement of facts that merely creates a suspicion [of] a legally cognizable right of action~'). See also Ashcroft v. Iqbal, _ U.S. 2 A072A (Rev.8/82) _, 129 S. Ct. 1937, 1951-53 (2009) (holding that Twombly "expounded the pleading standard for all civil actions," to wit, conclusory ~llegations that "amount to nothing more than a formulaic recitation ofthe elements ofa constitutional ... claim" are "not entitled to be assumed true," and, to escape distnissal, complaint must allege facts i sufficient to move claims "across the line from tonceivable to plausible") (internal quotations omitted); Oxford Asset Mgmt. v. JaMris, 297 F.3d 1182, 1187-88 (11th Cir. 2002) (stating that "conclusory allegations, unwarranted deductions offacts[,] or legal conclusions masquerading as facts will not prevent dismissal"). B. 42 U.S.C. § 1983 Cause of Action i To state a claim for relief under 42 U.S.C~ § 1983, a plaintiff must allege that a defendant's act or omission under color of istate law deprived him of a right, privilege, or immunity secured by the Constitutibn or laws of the United States. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (lIth Cir. 1995). Ifa plaintiff fails to . satisfY these requirements or to provide factual allegations supporting a viable cause of action, the claim is subject to dismissaL Se~ Chappell v. Rich, 340 F.3d 1279, 1283-84 (11th Cir. 2003) (affirming the district court's dismissal of a § 1983 complaint because plaintiffs' factual allegations were insufficient to support the alleged constitutional violation). 3 A072A (Rev.8/82) II. The Complaint Glover sets forth the following allegations. Officers Miller and Davis of the Marietta City Police Department stopped his vehiple at 3 :33 a.m. on August 24,2008. Despite his registering .000 on a breath test, the dfficers conducted an "illegal search and seizure" of his vehicle and transported him to Wellstar Kennestone Hospital i (Wellstar). At Wellstar, Glover willingly gave aj blood sample, but he informed the officers that he was unable to produce urine. At ali out 6 :05 a.m., Dr. John Doe, "acting in concert" with the two officers, used a catheter to extract a urine sample from Glover, thereby "physically and sexually" ass~ulting him. (CompI. at 3-4, 7-11.) Dr. Krug then issued a "void/defective 1013 ...' for the convenience of Defendants S. Miller, S. Davis and the Marietta City Police Department." (Id. at 12-13.) Glover further alleges that Defendants Flynn and Kelker "conspired to cover up the physical and sexual assault ... by claiming and stating in an unsigned document to [him] that Officers S. Davis and S. Miller had no part in [the] assault." (Id. at 13­ 14.) Glover claims he has evidence that at least eight other patients at Wellstar "claim to have been sexually assaulted by two or more 'fellstar employees" during the same time span as Glover. (Id. at 15.) Glover claims that Drs. Krug and Doe acted "with the knowledge and consent" of Simone, Wellstar's ichief executive officer, or that their 4 A072A (Rev.8/82) actions were later "approved and ratified" by Sim.one. (Id. at 16.) Glover claims that I the Defendants violated his rights under th~ Fourth, Sixth, and Fourteenth Amendments to be free from illegal search anp seizure and unlawful arrest and detention. He seeks compensatory and punitive damages. (Id. at 17-19.) III. Discussion "Only in rare circumstances can a private party be viewed as a 'state actor' for section 1983 purposes. The Eleventh Circuit recognizes three tests for establishing state action by what is otherwise a private persoh or entity: the public function test, the state compulsion test, and the nexus/joint acti~n test." Harvey v. Harvey, 949 F.2d 1127,1130 (11th Cir. 1992). "The state compulsion test limits state action to instances where the government has coerced or at least $ignificantly encouraged the action alleged to violate the Constitution." Focus on th~ Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1277 (l1th Cir. 2093) (internal quotations omitted). Furthermore, the Supreme Court has held that '~[a] defendant cannot be held liable under section 1983 on a respondeat superior or ~icarious liability basis," and "every circuit court to consider the issue has extended the holding to private corporations as well." Harvey, 949 F.2d at 1129-30 (citing Moqell v. Dep't of Soc. Serv., 436 U.S. 5 A072A (Rev.8/82) 658 (1978), and concluding that a private hospitajl "cannot be faulted for the conduct of its employees"). Apparently, the only basis for Glover's suit against Simone is Glover's i conclusory allegations that Simone, a private adtor, the chief executive officer of a private corporation, either knew about and cons~nted to, or "approved and ratified," the actions oftwo ofhis employees, also private aptors, who allegedly conspired with, or acted jointly with, two police officers to extraqt urine from Glover against his wilL , This attenuated chain ofcausation is an insufficient basis to maintain a § 1983 action against Simone. Noting the well-established rulb "that supervisory officials are not liable under § 1983 for the unconstitutional acts !of their subordinates on the basis of respondeat superior or vicarious liability," the Eldventh Circuit has stated that, instead, ! a supervisor is individually liable only when he "personally participates in the alleged unconstitutional conduct or when there is a cau~al connection between [his] actions ... and the alleged constitutional deprivation." C~ttone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). This causal connection can bd established by showing that (1) the supervisor knew about and failed to correct a widespread history of abuse, or (2) he had a custom or policy that resulted in a constitutional violation, or (3) the "facts support an inference that the supervisor directedithe subordinates to act unlawfully or 6 A072A (Rev.8/82) knew that the subordinates would act unlawfully! and failed to stop them from doing so." Id. (Internal quotations omitted.) "The standard by which a supervisor is held liable in [his] individual capacity for the actiOns of a subordinate is extremely rigorous." Id. Glover's conclusory allegations against Simone do not meet that standard, and, therefore, Simone's motion to dismiss will be granted. In addition, Glover has not alleged any cogpizable basis for proceeding against Dr. Krug, Chief Flynn, or Lieutenant Kelker, w~o also will be dismissed from this action. Glover has not explained how Dr. Krug's issuance ofa "void/defective 1013" or Chief Flynn and Lieutenant Kelker's "claiming and stating in an unsigned I document" that Officers Miller and Davis were inot involved in the alleged assault 1 i against Glover violated his constitutional rights, land the Court will not speculate, or I require these three Defendants to speculate, abqut how these alleged actions might support a § 1983 cause of action. See Twombly, 1550 U.S. at 555-56. i With respect to the actual use of the catfueter, however, Glover has alleged sufficient facts to maintain a cause ofaction agaiqst Officer Miller, Officer Davis, and i Dr. John Doe. There seems little dispute that "the taking of blood against a person's will for determining blood-alcohol content [does] not violate the Fourth Amendment." United States v. Vega-Barvo, 729F.2d 1341,1347 (11th Cir. 1984) (citing Schmerber 7 A072A (Rev.8/82) v. California, 384 U.S. 757, 770-71 (1966)). "Nevertheless, force, or the lack thereof, remains a factor to be considered in Fourth Amendment cases." Id. at 1348. "The , forcible extraction of urine through a catheter arguably presents Fourth Amendment considerations of somewhat greater intensity. Unlike the withdrawal of blood, catheterization cannot be said to involve 'virtualJy no risk, trauma, or pain. '" Lovett v. Boddy, 810 F. Supp. 844,848 (W.D. Ky. 1993) (citing Schmerber, 384 U.s. at 771). Accordingly, taking Glover's allegations as true, fis the Court must at this stage ofthe i proceedings, his Fourth Amendment claim will bd allowed to proceed against Officers Miller and Davis, and also against Dr. John Doe, who allegedly acted under state compulsion in administering the catheter to Glciver, despite Glover having already given breath and blood samples to the police. IV. Disposition For the foregoing reasons, this Court finds that Plaintiff has alleged a viable Fourth Amendment cause of action under § 1983 against Officers Miller and Davis and against Dr. John Doe. Accordingly, his clai~s are ALLOWED TO PROCEED , as in any other civil action against those three Detendants. However, because Plaintiff has not stated a claim for relief against Defendants Simone, Krug, Flynn, and Kelker, , those four Defendants are DISMISSED from thiJ action. Simone's Motion to Dismiss 8 A072A (Rev.8/82) [11] is GRANTED; Simone's Motion to Stay:Proceedings [14] is DENIED AS MOOT; and the Motion for Scheduling Conference [16] filed by all Defendants, including those who are dismissed, is DENIED without prejudice to renewal by the i remaining Defendants. Plaintiffs motion for leave to proceed in forma pauperis as a r ! non-prisoner [5] is GRANTED, and his motion f<t>rservice ofprocess [4] is DENIED AS MOOT. Plaintiff SHALL serve upon each Defen~ant or each Defendant's counsel a i i copy of every additional pleading or other docubent that is filed with the Clerk of Court. Each pleading or other document filed with the Clerk SHALL include a I certificate stating the date on which an accurate cppy ofthat paper was mailed to each I Defendant or each Defendant's counsel. This Court will disregard any submitted papers which have not been properly filed with the Clerk or which do not include a certificate of service. Plaintiff also SHALL keep the Court and ea.ch Defendant advised ofhis current . address at all times during the pendency ofthis action. Plaintiffis admonished that the failure to do so may result in the dismissal ofthiis action. This case SHALL proceed on a four (4) Ql,onth discovery track, beginning no i later than thirty (30) days after the appearance oflthe first Defendant by answer to the 9 A072A (Rev.8/82) complaint, subject to extension by motion filed prior to the expiration ofthe discovery period. See LR 26.2(A)-(B), NDGa. IT IS SO ORDERED this (4 ~L day of i .~ ,2010. TIMOTHY C. HATTEN, SR. UNITED STATES DISTRICT JUDGE 10 A072A (Rev.8/82)