Cox v. Nobles et al, No. 1:2019cv00031 - Document 26 (S.D. Ga. 2020)
Court Description: ORDER granting Defendants' 17 Motion to Dismiss. This action against Officer Crump is Dismissed Without Prejudice. As no claims remain this case is dismissed and stands Closed. Signed by Chief Judge J. Randal Hall on 3/31/2020. (pts)
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Cox v. Nobles et al Doc. 26 F'lLED U.S. OiSTRfCT COURT AUGUSTA D!V. IN THE XJNITED STATES DISTRICT COURT FOR iiu rihi* 0 1 SOUTHERN DISTRICT OF GEORGIA Ai' AUGUSTA DIVISION CLERK SO. I RONALD COX, Plaintiff, * V. CV 119-031 A" DEPUTY WARDEN BENJIE NOBLES, OFFICER CRUMP, WARDEN PERRY, k SARGENT DAVIS, WARDEN TED PHILBIN, and UNIT MANAGER "k HARRIS, k k k k Defendants. ORDER Before the Court is Defendants Nobles, and Harris's complaint. following addressing ("Moving Defendants") (Doc. 17. ) reasons, the motion pending motion, the After motion due to Perry, dismiss consideration dismiss the to Davis, Court is and GRANTED. addresses Philbin, amended for the Before Plaintiff's failure to serve Officer Crump. I. FAILURE TO SERVE OFFICER CRUMP The record lacks evidence showing service upon Officer Crump. Moving Defendants note this service failure in their motion to dismiss amended complaint (Br. Supp. Moving Defs. ' Mot. to Dismiss, Doc. 17-1, at 2 n.2) , yet Plaintiff fails to address or acknowledge this deficiency in his response. In Plaintiff of this deficiency on May 28, fact. 2019, Defendants alerted when they moved to Dockets.Justia.com dismiss the original complaint. (Mot. to Dismiss Compl., Doc. 3; Br. Supp. Mot. to Dismiss Compl., Doc. 3-1, at 2 n.2.) In the August 21, 2019 Joint Rule 26(f) Report, the Parties stated, "All Defendants have been served except for Defendant Crump." 18, at 1.) (Doc. Although the prompt requested the Parties to provide an expected date of service, no date was provided. (Id.) Under Federal Rule of Civil Procedure 4(m): If a defendant is not served within [ninety] days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend period. "Even in the the time for service absence of good cause, for a an appropriate district court has the discretion to extend the time for service of process." Lepone- Dempsey v. Carroll Cty. Comm^rs, 476 F.3d 1277, 1281 (11th Cir. 2007), superseded in part by statute as stated in Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132-33 (11th Cir. 2005). After a finding of no good cause: [Tjthe district court must still consider whether any other circumstances warrant an on the facts of the case. extension of time based Only after considering whether any such factors exist may the district court exercise its discretion and either dismiss the case without prejudice or direct that service be effected within a specified time. Id. at 1282. that this The advisory committee's note to Rule 4 explains "[rjelief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is attempted service." to 1993 amendments; evading service or conceals a defect in Fed. R. Civ. P. 4 (m) advisory committee's note see also Horenkamp, 402 F.3d at 1132-33 (upholding district court's extension of time to serve even without good cause for the delay because statute of limitations had run). However, "the running of the statute of limitations does not require that a district court extend the time for service of process." Horenkamp, 402 F.3d at 1133. The Court finds Plaintiff received ample notice of the lack of service and failed to rectify the situation; Plaintiff now fails to offer any good cause for the extensive delay. finds there is no other reason The Court also warranting it to exercise its discretion and extend the time to serve. "Section 1983 claims are tort actions, subject .to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought." DeYounq v. Owens, 646 F.3d 1319, 1324 (11th Cir. 2011) (citation and internal quotations omitted). In Georgia, there is "a two-year statute of limitations for personal injury actions" id. (citing O.C.G.A. § 9-3-33), "and that limitations period is two years from the accrual of the right of action" Thompson v. Corr. Corp. of Am., 485 F. App'x 345, 347 (11th Cir. 2012) (applying Georgia law). Plaintiff brings his deliberate indifference claim against Officer Crump for acts occurring while at Autry State Prison, which lasted from April 2017 to, at the latest, August 2017. (See Am. Compl., Doc. 16, II 11-12, 15.) of limitations has Officer Crump. now Thus, it is probable the statute expired on Plaintiff s claims against See Thompson, 485 F. App'x at 347 (quoting Wallace V. Kato, 549 U.S. 384, 388 (2007)) (finding deliberate indifference claim accrued on the date "he was assaulted by the other inmate" because, at that time, he "had a 'complete and present cause of action.'"). Regardless, because Plaintiff obtained notice of the lack of service almost a year ago — potentially before the statute of limitations expired — yet declined to effect service, request an extension, or take any action to rectify the known deficiency, the Court is disinclined to exercise its discretion to grant an extension. As such. Plaintiff failed to effect service on Officer Crump and the Court lacks jurisdiction over him. II. BACKGROUND Plaintiff, Ronald Cox,^ brings this action for assaults he experienced from April 2017 to May 2018 while an inmate at three different prisons: Autry State Prison, Central State Prison, and Augusta State Medical Prison. each prison. estrogen Plaintiff which hips . . . as (punctuation caused well (Am. Compl., II 11, 15, 21.) received him as other omitted).) Upon to "transgender exhibit female entering injections female breasts features." each prison. (Id. At of and I 10 Plaintiff 1 The Court uses masculine pronouns when referring to Plaintiff consistent with the pronouns used by Plaintiff in his filings. Moving Defs.' Mot. to Dismiss, Doc. 22, at 2.) (See, e.g., PI.'s Resp. Opp'n requested protection in Elimination Act2 ("PREA").^ accordance with the Prison Rape (Id. ) A. Autry State Prison "On April 27, 2017[,] at Autry State Prison[,] Plaintiff filed a [PREA] complaint which was reviewed by [Defendant] Deputy Warden Benjie Nobles who had Plaintiff moved into a cell with Rashad Stanford who sexually assaulted and threatened him with a weapon." (Id. I 11.) It is unclear what happened thereafter. Plaintiff states that he "reported the sexual assault to Officer Crump"^ and told Officer Crump that "Stanford had a shank," but no action was taken. (Id. I 12.) Plaintiff also "immediately filed a PREA with Unit Manager Hodge," and "[a]n investigation by PREA was done by [Defendant] Nobles who . . . made no action to remove Plaintiff Cox into a PREA dorm." (Id. I 13.) In the next paragraph, however. Plaintiff states that he "was sent to the hospital for medical attention following the assault. (Id. 1 14.) Upon returning to the prison. Plaintiff Cox was transferred out of the cell with Rashad and placed on lockdown for [thirty] transferred to Central State Prison." (Id.) days until he was Plaintiff's Amended 2 In general, PREA's purpose is for the development of national standards to reduce "prison rape." 34 U.S.C. § 30302. 2 Plaintiff sometimes states that he "filed a [PREA] complaint" and other times only states that he "filed a PREA." (Compare Am. Compl. 1 11, with id. I 19.) A PREA or PREA complaint seems to be a request for additional protection. (See Am. Compl., 1 10.) Plaintiff does not explain the substance of these requests. '• Officer Crump is not a defendant in this action. See supra Section I. Complaint contains no allegations he was attacked at Autry State Prison after the April 27, 2017 assault. B. Central State Prison Upon his transfer to Central State Prison, Plaintiff "was not placed in a safe environment provided by PREA . . . of which he requested PREA protection from [Defendant] Warden Perry and filed grievances about not being protected in accordance with PREA." (Id. SI 15.) While watching the television on August 9, 2018, Plaintiff "was attacked from behind by Benjamin Israel . . . and hit so hard that he fell to the ground. kick him (internal in the abdomen punctuation and punch omitted).) officer broke up the fight. His attacker proceeded to him continuously." Plaintiff also (Id. states, "No The prison was short staffed and there was one officer watching four pods." (Id.) C. Augusta State Medical Prison Plaintiff Prison was then transferred where, again, "he to Augusta was not placed in State Medical a safe environment provided by PREA . . . of which he requested PREA protection from [Defendant] Warden Philbin and filed grievances about not being protected in accordance with PREA." (Id. 5 16.) On April 13, 2018, there was an altercation between Plaintiff and his cell mate, Terry Frasier, which "began when Frasier saw [Plaintiff] come in the shower where Frasier was masturbating though[t] Plaintiff Cox was watching. in which Frasier Frasier then threatened to 'wet' Plaintiff Cox." (Id. I 17.) Later that day, "Frasier pulled out a shank on Plaintiff Cox to which Cox fought back with a lock in a sock." (Id. ) "Plaintiff filed a PREA regarding the fight with Terry Frasier. The PREA was filed with Counselor Taylor who reported it to [Defendant] [Sergeant] Harris. It was [thirty] days (May 17, 2018) before an investigation took place." I 19.) No additional incident occurred during that time. (Id. Then, on May 21, 2018, Plaintiff asked Defendant Harris "why Frasier had not been moved from the cell to which [Defendant] Harris replied that Plaintiff Cox should be moved." (Id. I 20.) Plaintiff was then removed from the cell with Frasier, but he remained in the same dorm as Frasier. (Id.) moved with out of the cell Later in the day after Plaintiff Frasier, Plaintiff "was critically stabbed by Terry Frasier and hospitalized for six days for his injuries." (Id. 5 21.) this attack occurred. The Amended Complaint does not state where "Upon being released from the hospital[,] Plaintiff was placed on lockdown in a PREA dorm." Plaintiff filed this case on March 4, 2019. 1.) (Id.) (Compl., Doc. Plaintiff filed the Amended Complaint on August 8, 2019 (Am. Compl.), and Moving Defendants filed their motion to dismiss on August 12, Plaintiff 2019. (Moving responded (Pl.'s Defs. ' Mot. to Resp. Moving Opp'n Dismiss, Doc. 17.) Defs. ' Mot. to Dismiss, Doc. 22), and Moving Defendants replied (Moving Defs. ' Reply Supp. Mot. to Dismiss, Doc. 25). As such. Moving Defendants' motion to dismiss is ripe for the Court's consideration. For the following reasons, the court GRANTS the motion. III. MOTION TO DISMISS STANDARD Under Federal Rule of Civil Procedure 8(a) (2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" so that the defendant has "fair notice" of both the claim and the supporting grounds. Bell Atl. Corp. V. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Although "detailed factual allegations" are not required. Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmedme accusation." Ashcroft v. Iqbal, (quoting Twombly, 550 U.S. at 555). 556 U.S. 662, 678 (2009) Furthermore, a plaintiff's pleading obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a will not do." cause of action Twombly, 550 U.S. at 555. To survive a Rule 12(b) (6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true,^ 'state a claim to relief that is plausible on its face.'"® to Iqbal, 5 The court must accept all well-pleaded facts in the complaint as true and construe all reasonable inferences therefrom "in the light most favorable to the plaintiff." Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006) (citation omitted). Conclusory allegations, however, "are not entitled to an assumption of truth — legal conclusions must be supported by factual allegations." Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). ® Although the Eleventh Circuit previously employed a "heightened pleading standard" for "section 1983 cases where qualified immunity [was] at issue," Harper v. Lawrence Cty., 592 F.3d 1227, 1233 (11th Cir. 2010), such cases are now "held to comply with the standards described in Iqbal." Randall, 610 F.3d 556 U.S. at 578 (quoting Twombly, 550 U.S. at 570).. "A claim, has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference defendant is liable for the misconduct alleged." Id. that the The court may not reasonably infer the defendant is liable when the wellpleaded facts fail to show "more than the mere possibility of misconduct." Id. at 679; see Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012) ("[F]actual allegations must be enough to raise a right to relief above the speculative level.") (quoting Twombly, 550 U.S. at 555). Moving Defendants argue Plaintiff s Amended Complaint fails to state a plausible claim that Moving Defendants violated Plaintiff's Eighth Amendment right and, thus. Moving Defendants are entitled to qualified immunity. The Court now addresses Moving Defendants' challenges. III. DISCUSSION A. Qualified Immunity Qualified immunity is a judicially created affirmative defense under which "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established at 709; see also Bowen v. Warden, Baldwin State Prison, 826 F.3d 1312, 1319 (11th Cir. 2016). statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For qualified immunity'' to apply, a public official first has to show he was "acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Dade City, omitted). 327 F.3d 1186, 1194 (11th Cir. Lumley v. City of 2003) (citations To determine whether a government official was acting within the scope of his discretionary authority, courts consider whether the official "was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize."® 1265. Holloman, 370 F.3d at Once a defendant establishes that he was "acting within his discretionary authority, the burden shifts to the plaintiff to demonstrate that qualified immunity is not appropriate." 327 F.3d at 1194; see Bowen, 826 F.3d Lumley, at 1319 (applying same burden-shifting analysis in reviewing Rule 12(b)(6) dismissal). ' Prison officials may invoke the Eleventh Amendment when sued in their official capacity under § 1983 by inmates. See Williams v. Bennett, 689 F.2d 1370, 137677 (11th Cir. 1982) , cert, denied, 464 U.S. 932 (1983) . ® In other areas, "a Miscretionary function' is defined as an activity requiring the exercise of independent judgment, and is the opposite of a 'ministerial task.' . . . In the qualified immunity context, however, [the Eleventh Circuit] appear[s] to have abandoned this 'discretionary function/ministerial task' dichotomy." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004) (internal citation omitted) . For purposes of qualified immunity, the Eleventh Circuit interprets "'discretionary authority' to include actions that do not necessarily involve an element of choice." McCoy v. Webster, 47 F.3d 404, 407 (11th Cir. 1995) . A governmental actor engaged in purely ministerial activities can nevertheless be performing a discretionary function. Id. 10 Plaintiff fails to respond to Moving Defendants' conclusion that Moving Defendants were acting within their discretionary- authority. At any rate, the Court finds Moving Defendants were engaged a officers in and job-related wardens at function the when prison. generally Given the low required to establish discretionary authority and opposition, the Court finds Moving Defendants working as standard the lack of acted in their discretionary authority. Accordingly, the Court must look to the Amended Complaint to see if Plaintiff included sufficient facts demonstrating Moving Defendants are not entitled to qualified immunity.^ 826 F.3d at 1319. that Bowen, In doing so, the Court must consider "whether, taken in the light most favorable to [Plaintiff], the facts alleged show [Moving right." Defendants Id. Defendants'] (citation maintain constitutional right conduct omitted). their shield violated "was violated a constitutional, If is shown. of that immunity clearly Moving unless established." the Id. Because the Court finds Plaintiff's Amended Complaint does not 5 The Court notes that at the motion to dismiss stage, Plaintiff does not have the burden to prove the facts alleged are true; the Court accepts facts in the Amended Complaint as true. See Randall, 610 F.3d at 705. Plaintiff, however, must allege enough facts in the Amended Complaint to allow the Court to find that qualified immunity does not protect Moving Defendants from this suit. Bowen, 826 F.3d at 1319 ("[T]he Twombly-Iqbal plausibility standard applies equally to pleadings for § 1983 cases involving defendants who are able to assert qualified immunity as a defense.") (internal quotation marks and citation omitted); Randall, 610 contain either direct elements necessary to (citation and internal F.3d at 707 n.2 ("[C]omplaints in § 1983 cases must now or inferential allegations respecting all the material sustain a recovery under some viable legal theory.") quotation marks). 11 plausibly show Moving Defendants violated Plaintiff's constitutional right, the Court declines to address whether that right was clearly established. B. Constitutional Right The Eighth Amendment^o not only prohibits prison officials from inflicting "cruel and unusual punishment" upon inmates, but also imposes a duty measures to guarantee on prison officials to "take reasonable the safety of the inmates." Brennan, 511 U.S. 825, 832 (1994) (citation omitted). Farmer v. To guarantee inmate safety, "prison officials have a duty to protect prisoners from violence at the hands of other prisoners." Id. at 833 (citation omitted); see also Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986). Although officers can be liable for failing to prevent a prisoner-on-prisoner attack, not "every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety." (11th Cir. 2014) Harrison v. Gulliver, 746 F.3d 1288, 1298 (quoting Farmer, 511 U.S. at 834); see also Purcell ex rel. Estate of Morgan v. Toombs Cty., 400 F.3d 1313, 1321 (11th Cir. 2005) ("[A] prison custodian is not the guarantor of a prisoner's safety.") (citation and internal quotation marks). 10 "The Eighth Amendment's ban on cruel and unusual punishment is made applicable to the states by virtue of the Fourteenth Amendment." Carter v. Galloway, 352 F.3d 1346, 1347 n.l (11th Cir. 2003) (citing Robinson v. California, 370 U.S. 660, 666-67 (1962)). 12 The Eighth Amendment does not outlaw cruel and unusual "conditions"; It outlaws cruel and unusual "punishments." An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage . . . . But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the Infliction of punishment. Farmer, 511 U.S. at 837-38 (Internal citation omitted). Thus, "[o]nly a prison official's deliberate Indifference to a known, substantial risk of serious harm to an Inmate violates the Eighth Amendment." Gulliver, Consequently, an 746 Eighth F.3d Amendment requires a plaintiff to show serious harm existed; at 1298 failure that: "(1) a (2) the defendants (citation omitted). to protect claim substantial risk of were deliberately Indifferent to that risk. I.e., they both subjectively knew of the risk and also objectively disregarded reasonable It by manner; and connection." Bowen, 826 F.3d at 1320. only the second prong, arguing falling to (3) there respond was a In an causal Moving Defendants challenge Plaintiff s complaint does not plausibly show any moving defendant was deliberately Indifferent. As such, the Court assumes prongs one and three are met for the purpose of the motion to dismiss and evaluates only Moving Defendants' challenge to prong two. The second prong — the defendant's deliberate Indifference to the risk — has both a subjective and an objective component. In that It requires the plaintiff 13 to produce evidence that the defendant: (1) "actually (subjectively) knew that an inmate faced a substantial risk of serious harm"; known risk by failing reasonable manner." to respond and (2) "disregarded that to it in an (objectively) Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014) (citation omitted). To demonstrate the subjective component — actual knowledge of the substantial risk of serious harm — the plaintiff must show the defendant was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [show the defendant actually] dr[e]w the inference." Id. at 1099-1100 (citation omitted); see also Marsh v. Butler Cty., 268 F.3d 1014, 1029 (11th Cir. 2001) (The officer's subjective awareness was shown through reports "faultfinding, outlining [j]ail; . . . many inspection the reports conditions complaints from assistance; . . . correspondence by that existed prisoners from state and to the safety of inmates'; behalf of the inmates." and . . . a at requests prisoners' detailing the staffing problems and warning of a agencies, the for lawyers ^serious threat lawsuit filed . . . on The complaint also alleged the conditions were "longstanding and pervasive."), abrogated on other grounds by Twombly, 550 U.S. 561-63. the Constitution for 'an Indeed, "[n]o liability arises under official's significant risk that he should have failure to alleviate a perceived but did not.'" Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008) (quoting 14 Farmer,. 511 U.S. at 838). Nevertheless, "[wjhether a particular defendant has subjective knowledge of the risk of serious harm is a question of fact ^subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.'" Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir. 2007) (quoting Farmer, 511 U.S. at 842). To demonstrate the objective component of the second element - disregard of the known risk - a plaintiff must show that the defendant "knew of ways to reduce the harm knowingly . . . or . . . recklessly declined to act." but Rodriguez V. Sec'y for Pep't of Corr., 508 F.3d 611, 620 (11th Cir. 2007) (citations omitted); see also Marsh, 268 F.3d at 1029 (after finding officer was subjectively aware of risk based on conditions at jail, court found doing "nothing to alleviate the conditions . . . , despite repeated warnings and recommendations for how conditions unreasonable). could be improved," was objectively Like the subjective component, "[d]isregard of the risk is also a question of fact that can be shown by standard methods." 1. Goebert, 510 F.3d at 1327 (citation omitted). PREA Standards Plaintiff transgender alleges status, "all "refused the to 15 wardens" were aware of provide him protection his in accordance with PREA[,] and were deliberately indifferent to his vulnerability as a transsexual exhibiting female physical traits." (Pl.'s Resp. Opp'n Moving Defs.' Mot. to Dismiss, at 3.) In sum, Plaintiff s claim here is that he is a transgender female and, therefore, faced a substantial risk of sexual abuse and should automatically have been more protected upon request. 6.) (Id. at 4- Plaintiff cites the PREA screening and placement standards and "[t]he Georgia Department of Corrections [("GDOC")] Standard Operating Procedure for PREA," which "adopts a zero tolerance for sexual abuse of inmates at risk of sexual attack." (Id. at 5.) The Court quickly dispels Plaintiffs broad claim that "States['] failure to follow the requirements of PREA demonstrates deliberate indifference as PREA provides in § 2(13)." PREA does not include such a (Id. at 4-5.) general statement. The The findings section of PREA provides: "States that do not take basic steps to abate prison significant rape by adopting additional indifference." 34 standards expenditures U.S.C. § 30301(13). that do demonstrate There are not generate [deliberate] insufficient facts in the Amended Complaint concerning the standards adopted or implemented by each prison housing Plaintiff. Thus, Plaintiffs Amended Complaint cannot survive based on citing to such a broad statement within PREA. Plaintiff further cites to no case where a court found failure to follow a PREA requirement was 16 a per se Eighth, Amendment violation. It is true that "PREA cites Farmer v. Brennan as an example of deliberate indifference to the substantial risk of sexual attack by other prisoners as violative of the Eighth Amendment" (Pl.'s Resp. Opp'n Moving Defs.' Mot. to Dismiss, at 4), but it does not follow that noncompliance requirements is a per se Eighth Amendment violation. deliberate methods, indifference and the mere claim fact must that be proven Plaintiff by is with PREA Plaintiff's the standard transgender is insufficient to show Moving Defendants are liable under the Eighth Amendment for any assault Plaintiff experienced. Compare Green, 2020 WL 57329, at *10 (finding no deliberate indifference when transgender female was sexually assaulted after being placed in general population subsequent to a PREA screening that took into account the plaintiff's "sexual orientation, gender orientation, and [the plaintiff's] own perception of her vulnerability"), and Jacoby v. Carter, No. 4:16-CV-0728-MHH-TMP, 2017 WL 2962776, at *20 (N.D. Ala. May 1, 2017) ("[T]he plaintiff may not rely solely on his claims that he is a feminine, gay, smaller size white male to establish deliberate indifference. . . . Rather, . . . the plaintiff must demonstrate specific facts to show that each of the named defendants knew that the plaintiff was at risk of serious Further, housing a transgender automatically prohibited by PREA. inmate in general See Green v. Hooks, population F. App'x is not , 2020 WL 57329, at *2 (11th Cir. Jan. 6, 2020) ("Inmates of differing security levels are routinely housed together, and this practice is not prohibited by PREA."). 17 harm and took no actions to alleviate that risk.") (internal quotation marks and citation omitted), R. & R. adopted by 2017 WL 2957822 (July 11, 2017), with Diamond v. Owens, 131 F. Supp. 3d 1346, 1376-78 (M.D. Ga. 2015) (finding the complaint plausibly showed the officers' deliberate indifference based not just on the plaintiff's transgender status or PREA standards, but also the officers' knowledge of repeated sexual assaults and being told by a doctor that assaults at the the plaintiff prison was "given highly its vulnerable population to of sexual violent offenders"). 2. Demonstrating Subjective Awareness The Court now turns to the remaining allegations in the Amended Complaint to see whether Plaintiff has demonstrated.Moving Defendants' deliberate indifference. The Supreme Court outlined what an officer's deliberate indifference to a serious risk may look like: [I]f an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was "longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ^must have known' about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk." [A]nd it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk. Farmer, 511 U.S. at 842-43. not know of substantial danger." the But an officer can show that he "did underlying danger and facts that they indicating were a therefore sufficiently unaware of a Id. at 844. Plaintiff complains that he faced an excessive risk of attack because of his transgender status. Plaintiff cites one case, Diamond, which he argues "presented a similar situation in which the Plaintiff was transgender and was denied medical treatment as well as alleged multiple failure to protect claims." Opp'n Moving Defs.' Mot. to Dismiss, at 6.) (Pl.'s Resp. Plaintiff block quotes a section of the case without a factual comparison, but the Court undertakes this task. plausibly showed the In Diamond, the Court found the complaint officers' subjective awareness of plaintiff's risk because the complaint: [A]lleged that a transgender inmate's vulnerability to assault at a closed-security male facility was obvious to [the defendants] and that PREA and GDOC policies made clear transgender inmates are highly vulnerable to sexual assault. Further, she alleges [the defendants] spoke with her directly about her transgender status and were aware from notifications and records she was repeatedly sexually assaulted at three different closedsecurity facilities. [The plaintiff] met with [one defendant] . at assaults, and least three times about her sexual [a doctor] contacted [that officer] directly about [the plaintiff's] vulnerability to assault at Valdosta State Prison given its population of violent offenders. 19 the 131 F. Supp. 3d at 1378 (footnote omitted). court in Diamond knowledge: cited "[T]he a recognized pervasive and In so finding, the means to widespread show subjective nature of the conditions suggest the defendant had been exposed to information concerning the risk and thus must have known about it." Id. (quoting Buqqe v. Roberts, 430 F. App'x 753, 761 (11th Cir. 2011) (quoting present [Amended Farmer, 511 U.S. at 842-43)). case is factually Complaint] lacks distinct Defendants argue the from plausible Diamond allegations because "the of a long standing, pervasive, or well-documented risk of serious harm to Plaintiff." The Court (Moving Defs.' Reply Supp. Mot. to Dismiss, at 5-6.) analyzes the plausibility of Plaintiff's Amended Complaint as against the Moving Defendants at each prison, a.. Autry State Prison The first attack was a sexual assault at Autry State Prison. There is no claim of any repeated or pervasive sexual assaults before this attack that would show Defendant Nobles's subjective awareness as in Diamond. It is unclear what Defendant Nobles did after the attack because in one paragraph. Plaintiff alleges, "No action was made to remove Plaintiff . . . or [the attacker] from the cell or dorm with one another." (Am. Compl., I 13.) In the following paragraph, he alleges that following the assault, he was sent to the hospital, and upon his return, was placed in lockdown and no longer in the cell with his attacker. 20 Regardless of the actions taken after the sexual assault, Plaintiff falls to allege facts sufficient to establish Defendant Nobles's subjective awareness that Plaintiff faced a substantial risk of serious harm prior to the attack. Knowing only that Plaintiff "filed a [PREA] complaint" Is not enough to show Defendant Nobles's failure to move Plaintiff Indifference. before an attack constituted deliberate As such, Plaintiff's Eighth Amendment claim against Defendant Nobles falls. b. Central State Prison Plaintiff brings his Eighth Amendment claim stemming from his time at Plaintiff Central State requested Central State Prison. Prison PREA against protection Defendant upon being Warden Perry. transferred to Plaintiff claims he was "not being protected In accordance with PREA" but makes no allegation that Defendant Perry was aware of the prior sexual assault. On August 9, 2017,^2 while watching television he was "hit so hard that he fell to the ground. His attacker proceeded to kick him In the abdomen and punch him continuously. Here, the only allegation Plaintiff The Amended Complaint states 2018, but given the timeline, the Court believes Plaintiff means 2017. 12 Plaintiff also states, "No officer broke up the fight," but there is no allegation that these officers are defendants in the current suit. Further, Plaintiff states, "The prison was short staffed and there was one officer watching four pods." This statement is insufficient on its own to show a general excessive risk posed to inmates based on jail conditions. See, e.g., Purcell ex rel. Estate of Morgan, 400 F.3d at 1320-21 ("We accept that an excessive risk of inmate-on-inmate violence at a jail creates a substantial risk of serious harm; occasional, isolated attacks by one prisoner on another may not constitute cruel and unusual punishment, but confinement in a prison 21 offers to show Defendant Perry's subjective awareness of risk is that Plaintiff "requested PREA protection." As discussed above, requesting PREA protection alone is insufficient to place a warden on notice that an inmate faces a substantial risk of serious harm. The Court finds the Amended Complaint fails to plausibly show Defendant Perry was subjectively aware Plaintiff faced a serious risk. As such, Plaintiff fails to state an Eighth Amendment claim against Defendant Perry. c. Augusta State Medical Prison Plaintiff brings his Eighth Amendment claim stemming from his time at Augusta State Medical Prison against Defendants Warden Philbin and Unit Manager Harris. PREA protection from Defendant Once again. Plaintiff requested Philbin following transfer "filed grievances about not being protected in accordance PREA." After being in the altercation occurred between prison for over Plaintiff and his four and with months, cell mate an Terry Frasier: "Frasier saw [Plaintiff] come in the shower where Frasier was masturbating watching. in which Frasier though[t] Plaintiff Cox Frasier then threatened to ^wet' Plaintiff Cox. same day Frasier pulled out a shank on Plaintiff Cox to was That which [Plaintiff] fought back with a lock in a sock." where violence and terror reign is actionable.") quotation marks omitted). 22 (citation and internal It appears no officer was aware of the fight until after it concluded, and Plaintiff makes no claim about any injuries from the fight. filed a No defendant became aware of the fight until Plaintiff PREA regarding the fight reported it to [Defendant] Harris." with "Counselor Taylor who Plaintiff does not allege any incidents occurred after the fight while remaining in the cell with Frasier. Around thirty days after the fight, Plaintiff asked Defendant Harris why Plaintiff and Frasier were still in the same cell and Defendant Harris granted Plaintiff's request by removing Plaintiff from the cell with Frasier; the two remained in the same dorm. A few days after being moved, on May 21, 2018, Plaintiff "was critically stabbed by Terry Frasier and hospitalized for six days for his injuries. Upon being released from the hospital[,] Plaintiff was placed on lockdown in a PREA dorm." For Plaintiff's claim here to prevail, it must be plausible that Defendants Philbin and Harris were aware that Plaintiff faced a substantial risk of serious harm. Defendants previous Philbin prisons. or Harris There is was also There is no allegation that aware no of either attack allegation that in the Defendant Philbin was aware of the fight between Plaintiff and Frasier that resulted from the bathroom encounter. Plaintiff only states, "Officials at Augusta State Medical Prison became aware of a fight that occurred Compl., 51 17.) between Plaintiff Cox and Terry Frasier." (Am. For purposes of this motion, however, the Court 23 assumes Defendant Philbin is one such "official" who was aware of the fight. was aware The Amended Complaint makes clear that Defendant Harris of the fight. As such, Plaintiff claims Defendants Philbin and Harris failed to protect him from the May 21, 2018 attack when their knowledge of relevant events was limited to the following: Defendant Philbin knew that Plaintiff requested PREA protection from him upon entry into the prison; Defendant Harris knew that Plaintiff filed a PREA regarding the fight with Frasier; and, for purposes of this motion, both knew of the fight between Plaintiff and Frasier. or Harris on notice These facts do not place Defendants Philbin that Plaintiff faced a substantial risk of serious harm, especially after Plaintiff was removed from the same cell as Frasier, as Plaintiff requested. Consequently, Plaintiff s Amended Complaint fails to allege facts making it plausible that Defendants Philbin and Harrib were deliberately indifferent to a substantial risk of serious harm.^^ " Moving Defendants also state this action "was a reasonable response by [Defendant] Harris given the only alleged prior interaction between Fra[s]ier and Plaintiff was a shower fight." (Br. Supp. Moving Defs.' Mot. to Dismiss, at 10.) Plaintiff fails to dispute this point. The Court notes that an officer is not deliberately indifferent if he responds in a reasonable way. See Caldwell, 748 F.3d at 1099. Because Plaintiff's Amended Complaint fails to show Defendant Harris's subjective awareness to a serious risk, however, the Court need not determine whether Defendant Harris responded reasonably. Plaintiff fails to raise any factual allegations against Defendant Sergeant Davis. As such, there are insufficient facts in the Amended Complaint to show Defendant Davis violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. 24 IV. CONCLUSION For the foregoing reasons, Moving Defendants' dismiss amended complaint (Doc. 17) is GRANTED. motion to Further, this action as against Officer Crump is DISMISSED WITHOUT PREJUDICE. As no claims remain. Plaintiff's case is DISMISSED. directed to TERMINATE all motions and deadlines The Clerk is and CLOSE this case. ORDER ENTERED at Augusta, Georgia,^,>th)is 21^ day of March, 2020. J. RANBAL' HAL/, CHIEF JUDGE united/states district court ffiRN 25 DISTRICT OF GEORGIA
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